Iltlll 


UNIVERSITY  OF  CALIFORNIA 
AT  LOS  ANGELES 


THE  AMERICAN  CONSTITUTION 


THE 
AMERICAN  CONSTITUTION 

THE  NATIONAL  POWERS 
THE    RIGHTS     OF    THE    STATES 
THE  LIBERTIES   OF  THE  PEOPLE 


ILotoell  Institute  Hecturee 

DELIVERED    AT    BOSTON,    OCTOBER  -  NOVEMBER,    1907 


BY 

FREDERIC   JESUP   STIMSON 

Professor   of   Comparative    Legislation,   Har\'ard    University;   Late  Ad\'isorj' 
Counsel  to  the  U.  S.  Industrial  Commission:  Author  of  "American Con- 
stitutional Law,"   "American  Statute  Law,"   "Handbook  to 
the  Labor  Law  of  the  United  States,"  etc.,  etc. 


NEW  YORK 

CHARLES  SCRIBNER'S  SONS 

1908 


Copyright  1908  bv 
CHARLES  SCRIBNER'S  SONS 


c3  PREFACE 

In  these  lectures   I  have  used,  for  veri- 
fication of  facts,  chronology,  etc.,  the  monu- 
mental work    of   Hannis    Taylor,    LL.D,, 
<n      "The  Origin  and  Growth  of  the  English 
Constitution,"  Boston,  Houghton,  Mifflin  & 
^\«l    Co.,  1889,  and  the  English  classic,  Taswell- 
Langmead,    "English    Constitutional    His- 
tory,"  sixth   edition,   London,   1905.      For 
other    facts    and    statements,    their   ampli- 
fication   and    explanation,    the    reader    is 
>^    referred  to  my  own  work  "American  Con- 
>  stitutional    Law ;    the    Federal    and    State 
^    Constitutions,"    Boston     Book    Company, 
^     1908. 

The  frontispiece  is  taken  from  the  last- 
named  book,  by  courtesy  of  the  publishers. 


208i^J3 


CONTENTS 

CHAPTER  MCSE 

I.     The  Meaning  of  the  Constitution     .         i 

II.     Constitutional    Rights    Peculiar    to 

English  and  American  Freemen      .       32 

III.  English  Liberty  and  the  Freedom  of 

Labor 63 

IV.  Development  of  These  Rights;  Their 

Infringement  by  Kings  and  Their 
Reestablishment  by  the  People     .       92 

V.     The  Expression  of  Those  Liberties  in 

Our  Federal  Constitution     .     .     .     131 

VI.  Division  of  Powers  Between  Legis- 
lative, Executive,  and  Judicial; 
AND  Between  the  Federal  Gov- 
ernment and  the  States  ....     167 


CONTENTS 

CHAPTER  PACE 

VII.     Changes    in    the    Constitution    now 

Proposed 204 

VIIL  Interstate  Commerce,  the  Control  of 
Trusts,  and  the  Regulation  of  Cor- 
porations        227 


THE  AMERICAN   CONSTITUTION 


THE  MEANING  OF  THE  CONSTITUTION 

THERE  seems  to  be  an  impression 
abroad  that  our  Constitution  is  a 
mass  of  dry  bones;  or  at  least  that  it  is  a 
technical  document,  in  part  faulty,  and  for 
the  most  part  obsolete — like  the  rules  of  a 
game  which  has  since  so  changed  its  nature 
that  the  old  rules  no  longer  apply.  The 
Constitution  has  been  likened  to  the  frigate 
Constitution;  a  famous  vessel  in  her  day, 
but  obsolete  in  type,  no  longer  fit  to  cope 
with  modern  conditions.  This  metaphor  is 
utterly  misleading.  I  want  to  show  you 
that  it  is  not  a  mass  of  dry  rules,  but  the 
very  substance  of  our  freedom;  not  obso- 
lete, but  in  every  part  alive;  more  needful 
now  than  ever,  and  as  fitted  to  our  needs. 
Some  of  the  constitutional  rights  which 
were  thought  of  great  importance  under  the 
Stuarts,  or  even  one  hundred  years  ago, 
may  possibly  seem  less  familiar  and   less 


THE  AMERICAN  CONSTITUTION 

necessary  to  us  now.     Even  if  it  were  true, 
that  would  not  make  of  the  Constitution 
an  **  antiquarian  curiosity/'     But  when  we 
come  to  discuss  them,  we  should  hesitate 
from  hastily  assuming  that  any  one  of  them 
has  grown  so  obsolete  as  to  be  unnecessary 
to  preserve.     A  few  months  ago,  the  provi- 
sion   against    Bills    of  Attainder— that    is, 
condemnation    for    crime    or    forfeiture    of 
civil  rights  without  due  process  of  law — 
would    have    seemed    hardly    necessary    in 
America.       Yet  since  then,  in  his  praise- 
worthy zeal  to  punish  a  military  disorder, 
so  far  quite  within  his  constitutional  right 
as  Commander-in-Chief,  we  have  seen  our 
President  dictate  what  was  little  else  than 
an    Executive    Bill    of  Attainder — a   thing 
which  was  hardly,  if  at  all,  attempted  by 
the  Stuart  kings.     Another  instance— after 
the    Norman   kings  were   deprived  of  the 
power  of  making  laws,  the  Stuarts,  James 
I  and    Charles   I,  assumed  the    power    to 
suspend  them.    This  led  to  the  protest  of 
Chief  Justice  Coke  and  the  Commons,  and 
ultimately  to  the  Civil  War;   so  that  finally 
after  the   Revolution  it  was   put   into  the 
Bill  of  Rights  that  the  king  should  have  no 


THE  MEANING  OF  THE  CONSTITUTION 

power  to  suspend  the  operation  of  any  law. 
This  also  might  seem  obsolete;  but  if  it 
were  true — which  it  is  probably  not — that 
our  present  Executive  recently  promised  to 
suspend  or  withhold  the  operation  of  the 
anti-trust  law  in  case  a  certain  great  cor- 
poration were  to  take  over  the  property  of 
another,  this  would  be  an  exact  instance  in 
point.  No,  we  dare  not  say  any  part  of  this 
great  document  is  obsolete,  and  it  is  all  full 
of  human  meaning,  of  present  application. 
It  is  to  explain  the  true  meaning  of  the 
Constitution,  its  human  meaning,  the  safe- 
guards that  it  gives  to  every  one  of  us, 
the  live  issues  that  it  still  embodies,  that 
I  have  been  asked  to  give  this  course  of 
lectures. 

The  study  of  Anglo-American  constitu- 
tional law  is  that  of  the  liberties  of  the 
people.  It  is  neither  a  body  of  technical- 
ities, as  the  demagogue  is  prone  to  con- 
sider, nor  an  instrument  first  new  created 
in  the  year  1787,  and  now  only  an  incon- 
venient impediment  to  the  national  destiny. 
Our  own  Constitution  embodies  and  im- 
proves upon  the  English  Constitution,  and 
the  English  Constitution  registers  the  total- 

3 


THE  AMERICAN  CONSTITUTION 

ity — the  aggregate — of  those  great  principles 
which  in  eight  hundred  and  forty  years  of 
struggle  the  Saxon  peoples  have  won  back 
again  from  Norman  kings,  from  Roman  con- 
ceptions of  the  sovereign  state.  Each  rising 
wave  of  freedom  left  its  record  in  some 
historic  document — then  perhaps  the  times 
cause  it  to  recede  again — until  the  next 
flood  leaves  a  higher  record  still.  And  the 
Federal  Constitution,  the  whole  of  it,  is 
nothing  but  a  code  of  the  people's  liberties, 
political  and  civil;  a  code  of  many  cen- 
turies' growth,  which  they  willed  to  adopt  in 
1787,  and  willed  should  never  be  abrogated 
without  the  people's  will. 

I  said  eight  hundred  and  forty  years — 
reckoning  from  the  Norman  Conquest;  but 
the  main  constitutional  principles  are  much 
older  and  go  back  as  far  as  goes  the  history 
of  the  English  people.  William  might  con- 
quer England,  but  he  could  not  alter  their 
free  laws;  from  every  wave  of  Norman 
tyranny  they  emerge,  clearer  than  ever. 
Each  king  in  turn  must  learn  to  recognize 
their  strength;  until,  in  the  English  Revo- 
lution, the  Crown  finally  gave  over  all  at- 
tempt to  hold  itself  above  them. 

4 


THE   MEANING   OF   THE  CONSTITUTION 

And  we  have  added  in  America  two  or 
three  new  principles  which  the  world  is 
agreed  to  consider  the  most  remarkable  of 
any  of  them.  First  of  all,  the  great  discov- 
ery that  the  people  might  be  protected  from 
any  danger  to  their  liberties,  from  the  legisla- 
ture or  the  courts  as  well  as  from  the  Crown, 
even  from  that  Federal  Government  they 
were  going  to  create;  second,  the  great  prin- 
ciple of  the  separation  of  the  powers  of 
government,  which  first  appears  in  the  Vir- 
ginia Bill  of  Rights  of  1776,  just  one  month 
before  the  Declaration  of  Independence,  and 
also  written  by  Thonias  Jefferson;  and  again 
in  the  Massachusetts  Constitution  of  1780, 
in  the  famous  words  of  the  closing  para- 
graph of  our  great  Bill  of  Rights:  '*In  the 
government  of  this  commonwealth,  the  legis- 
lative department  shall  never  exercise  the 
executive  and  judicial  powers,  or  either  of 
them:  the  executive  shall  never  exercise  the 
legislative  and  judicial  powers,  or  either  of 
them:  the  judicial  shall  never  exercise  the 
legislative  and  executive  powers,  or  either 
of  them:  to  the  end  it  may  be  a  government 
of  laws  and  not  of  men."  These  last  ten 
words,  you  remember,  Daniel  Webster  said 

5 


THE  AMERICAN  CONSTITUTION 

were  the  greatest  words  contained  in  any 
written  constitutional  document.  And  this 
separation  was  without  any  precedent  in 
actual  history.  Montesquieu  had  men- 
tioned it,  basing  his  discovery  on  the  history 
of  England — where  a  free  people  had  re- 
peatedly nearly  lost  its  freedom  by  having 
the  executive,  that  is,  the  King,  assume 
legislative  powers,  that  is,  making  the  laws; 
or  assume  judicial  powers,  by  interfering  or 
controlling  the  courts  which  interpreted 
3  them.  And  a  third  great  invention  of  ours, 
more  rarely  noted  though  clearly  novel  in 
the  history  of  the  world,  was  that  wonderful 
scheme  whereby  local  self-government,  the 
control  by  the  people  of  their  own  affairs, 
which  was,  from  prehistoric  times,  a  cardinal 
Anglo-Saxon  right,  was  recognized  and  con- 
joined with  the  powerful  national  govern- 
ment, working  directly  upon  the  people,  and 
not  upon  the  States,  as  had  been  the  case 
in  all  other  federations  of  history  and  was 
the  case  even  in  our  own  under  the  Conti- 
nental Congress.  So  that  we,  the  people, 
manage  our  own  domestic  affairs,  sue  and 
are  sued  in  our  own  courts,  are  tried  under 
our  local  laws,  while  yet  we  have  clothed 


THE   MEANING  OF  THE  CONSTITUTION 

the  national  government  at  Washington 
with  power  adequate  to  defend  the  nation, 
maintain  its  dignity  abroad,  and  duly  regu- 
late affairs  of  national  concern.  And  the  <g_ 
last  wonderful  invention — we  might  almost 
call  this  also  an  accident — was  the  making 
the  Supreme  Court  of  the  United  States — 
not  the  King,  the  Executive,  nor  even  Con- 
gress— the  high  guardian  of  this  Constitu- 
tion itself;  so  that  no  law  could  be  made 
and  no  act  be  done  in  possible  violation 
of  any  of  a  man's  constitutional  rights  that 
the  man  himself,  be  he  the  humblest  citi- 
zen, could  not  go  into  a  court  and  have  the 
law  annulled. 

*' Annul"  is  the  usual  phrase,  but  it  is 
an  incorrect  one;  and  this  brings  us  to  the 
first  great  distinction  I  want  to  leave  in 
your  minds,  namely,  what  is  our  Constitu- 
tion, as  opposed  to  an  ordinary  law  or  act  of 
Congress. 

The  Constitution  is  the  permanent  will  =f' 
of  the  people;  a  law  is  but  the  temporary 
act  of  their  representatives,  who  have  only 
such  power  as  the  people  choose  to  give 
them.  When  the  people  of  a  State,  or  the 
United  States,  come  together  and  make  a 

7 


THE  AMERICAN  CONSTITUTION 

constitution,  they  are  doing  the  highest  po- 
htical  act;  and  they  themselves  are  the  high- 
est poUtical  power  known  to  free  Anglo- 
Saxon  peoples.  The  people  of  Oklahoma, 
when  they  came  together  the  other  day  to 
frame  their  Constitution,  were  the  supreme 
political  assembly  known  to  a  free  world. 
They  are  the  very  source  of  all  political 
power;  nothing  can  withstand  their  will, 
and  when  expressed,  it  is  permanent  until 
they  themselves  in  the  same  way  choose  to 
change  it.  Legislatures  are  but  a  small 
representative  committee;  for  convenience 
delegated  with  a  few,  and  only  a  few,  of  the 
boundless  powers  of  a  free  people.  Legis- 
latures arose,  as  you  know,  in  quite  recent 
times.  Almost  down  to  the  Conquest,  the 
whole  body  of  the  Anglo-Saxon  people  made 
their  law:  the  Witenagemot,  or,  as  the  Nor- 
mans call  it,  the  Great  Council  of  the  Realm. 
In  theory  every  freeman  could  go,  and  was 
supposed  to  go,  to  these  Witenagemots. 
Indeed,  it  is  on  record  that  at  one  of  them 
held  on  Salisbury  Plain,  about  a  hundred 
years  before  the  Conquest,  there  were  sixty 
thousand  voters  present.  This  is  ''direct 
legislation  by  the  people"  of  which  we  hear 

8 


THE  MEANING  OF  THE  CONSTITUTION 

so  much  to-day  and  which  some  of  our 
western  States  are  beginning  to  introduce 
once  more.  But,  for  obvious  reasons  of 
convenience,  in  the  course  of  two  or  three 
centuries  they  got  into  the  way  of  choosing 
a  smaller  number  of  men  to  represent  them. 
This  is  what  we  call  representative  govern- 
ment; and  this  was  called  the  great  invention 
which  the  English  people  had  given  to  the 
world's  science  of  government.  It  was  first 
used  in  the  very  assembly  which  drew  up 
Magna  Charta.  It  has  been  copied — like 
trial  by  jury — everywhere  since;  in  every 
European  country,  now  even  in  Russia. 

Now,  Parliament,  in  England,  is  sup- 
posed to  have  all  the  powers  of  the  people; 
but  we  more  jealously  guarded  the  people's 
rights,  and  all  our  State  constitutions,  as 
well  as  the  National  Constitution,  carefully 
say  that  Congress,  or  the  State  legislatures, 
do  not  have  all  the  powers  of  the  people;  but 
only  represent  them  in  such  matters  as  they 
have  expressly  delegated  to  them  in  our  writ- 
ten constitutions;  and  that  all  other  powers 
are  reserved  to  the  people,  or  to  the  States. 

Now,  then,  I  hope  you  will  see  why  it  is 
incorrect  to  talk  about  a  court  "nullifying" 

9 


THE  AMERICAN  CONSTITUTION 

a  law.  No  one  of  our  courts,  not  the  Su- 
preme Court  of  the  United  States,  ever 
nullifies  or  can  annul  a  law;  but  when  there 
is  a  State  statute  or  an  Act  of  Congress  on 
the  one  hand,  and  the  permanent  will  of  the 
people  expressed  in  the  Constitution  on  the 
other  hand,  and  the  two  conflict — the  courts 
have  to  choose  which  law  to  apply,  and  they 
apply  the  higher  law,  that  is,  the  permanent 
will  of  the  people  as  expressed  in  the  Consti- 
tution— not  the  attempted  act  of  their  rep- 
resentatives beyond  their  own  authority. 
The  other  law  is  really  no  law  at  all,  and 
never  was  law;  for  under  the  American  idea, 
that  cannot  be  law,  whether  made  by  Con- 
gress, government,  or  President,  by  board 
or  by  commission,  which  in  any  way  clashes 
with  the  permanent  written  will  of  the  peo- 
ple. No  other  country  in  the  world  has  this 
principle,  whereby  not  even  the  government 
can  make  a  law  counter  to  the  Constitution; 
nor  any  officer  can  do  an  act  not  authorized 
by  it;  and  in  either  case  the  Supreme  Court 
is  made  the  umpire  to  judge.  This  system 
is  the  envy  and  the  marvel  of  the  rest  of 
the  civilized  world. 

The  next  great  distinction  between  ours 

10 


THE  MEANING  OF  THE  CONSTITUTION 

and  the  English  Constitution  is  this:  the 
English  Constitution  was  made  to  protect 
the  people  against  the  King,  against  the 
Executive  alone;  not  against  bad  laws, 
against  Parliament.  It  was  a  bulwark 
against  Charles  Stuart,  Henry  VIII,  and 
George  III;  but  it  was  no  bulwark  against 
the  Rump  Parliament  of  the  later  Common- 
wealth, or  against  the  corrupt  Parliaments 
of  the  Tudor  kings.  Therefore,  in  England, 
when  the  kings  sought  to  re-enslave  the  peo- 
ple, they  were  apt  to  make  the  effort  through 
a  subservient  Parliament,  even  more  than 
by  a  subservient  judiciary;  for  the  English 
Constitution  is  no  bulwark  to  protect  the 
people  from  parliaments  or  courts.  But 
we  had  the  wonderful  idea  of  protecting 
ourselves  against  any  usurpation  of  govern- 
ment, and  the  usurpation  of  any  govern- 
ment— even  of  our  own — thus  retaining  the 
liberties  of  the  people  forever  in  their  own 
hands,  exercised  in  their  own  local  courts, 
their  own  town  meetings  and  their  own 
legislatures,  guarded  by  all  the  courts  of 
the  States  and  of  the  United  States;  so  that 
even  their  own  government,  set  up  only  so 
far  away  from  them  as  Washington,  might 

II 


THE  AMERICAN  CONSTITUTION 

not  too  much  busy  itself  with  their  domestic 
concerns.  For  the  one  thing  the  Enghsh 
people  learned  was  that  a  distant  govern- 
ment, even  benign — Henry  VI  in  France, 
for  instance,  or  even  too  much  power  cen- 
tralized in  London — was  dangerous  to  the 
well-being  if  not  the  liberties  of  the  people. 
The  twelfth  and  thirteenth  centuries  are  a 
continual  struggle  to  keep  power  where  it 
belonged — in  the  people's  councils,  not  in 
the  will  of  the  King;  in  the  county  courts, 
not  with  the  royal  Chancellor.  "  The  great 
original  principle  of  the  English  judicial 
system  was  that  of  trial  in  local  courts  prop- 
erly constituted — trial  per  pais,  in  the  pres- 
ence of  the  county,  as  opposed  to  a  distant 
and  unknown  tribunal."  (T.  L.,28.)  And, 
therefore,  in  our  Federal  Constitution  we 
protected  ourselves  against  usurpations  even 
of  our  own  government,  or  of  either  branch 
of  it.  Congress  or  President,  on  those  home 
liberties  which  a  thousand  years'  experience 
have  shown  to  be,  as  it  were,  the  irreducible 
minimum  necessary  to  the  Anglo-American 
people  for  freedom  as  they  understand  it. 
Now  this  was  no  accident;  the  Anglo-Saxon 
system  is  not  to  make  constitutions  ready- 

12 


THE  MEANING  OF  THE  CONSTITUTION 

made,  but  to  let  them  grow  out  of  events  and 
the  actions  of  free  men;  and  though  it  might 
seem  marvellous  that  our  Democracy,  a 
Democracy  which  for  the  first  time  in  history 
grasped  all  the  reins  of  government,  legis- 
lative as  well  as  executive  and  judicial,  grow- 
ing conscious  of  its  power  actually  to  make 
the  laws,  should,  as  a  first  step,  have  taken 
pains  to  put  this  curb  upon  themselves  and 
invented  written  constitutions.  State  and 
National, — there  were  two  reasons  for  it;  and 
these  reasons  are  opposite  to  one  another. 
The  genius  of  the  Anglo-Saxon  people  is 
to  rule  themselves.  To  a  certain  extent  it 
had  been  done,  at  least  so  far  as  the  King's 
powers  were  concerned,  in  England  for 
many  centuries:  *'The  laws  of  the  English, 
the  most  ancient  of  modern  law,  extend  in 
an  unbroken  series  from  Ethelbert,  the  first 
Christian  King  of  Kent;  the  earliest  written 
collections  are  simply  digests  of  local  un- 
written customs  which  had  been  handed 
down  by  oral  tradition  and  were  now  put 
in  writing  to  meet  the  needs  of  a  more  de- 
veloped and  centralized  State  organization" 
(T.  L.,  1,^),  and  we  had  not — the  founders 
had  not — any  doubt  of  our  ability  to  go  on 

13 


THE  AMERICAN  CONSTITUTION 

ruling  ourselves.  But  we  were  doing  two 
things  which  were  novel  in  the  world's  his- 
tory: we  were  setting  up  State  legislatures 
with  unlimited  powers;  and  we  were  setting 
up  a  remote  Federal  Government  which  we 
were  anxious  to  keep  in  hand.  Remember, 
the  State  constitutions  are  older  than  the 
Federal  Constitution,  and  served  as  model 
for  it.  And  the  framers  had  two  things  to 
consider :  they  were  trying  to  make  a  national 
government  which  should  be  purely  political, 
that  is  to  say,  have  to  do  with  the  nation  as 
a  whole  in  its  relation  to  other  nations, 
should  look  out,  therefore,  for  their  peace 
and  protect  them  in  time  of  war;  and  also  to 
create  and  maintain  State  governments,  at 
home,  to  regulate  the  social  affairs  of  the 
people.  To  the  States,  therefore,  was  in- 
trusted a  man's  liberty  in  relation  to  other 
individuals,  a  man's  private  property,  all 
the  regulation  of  his  domestic  concerns;  to 
the  Federal  Government,  as  such,  the  Fed- 
eral Constitution  gave  but  one  power  over 
the  States  directly — but  one  right  to  in- 
terfere with  them — and  that  was,  if  they 
ever  ceased  to  maintain  a  republican  form 
of  government.     Short  of  that,  short  of  es- 

14 


THE  MEANING  OF  THE  CONSTITUTION 

tablishing  a  monarchy  or  a  tyranny,  the 
President  of  the  United  States  and  the 
Federal  Congress  have  no  right  to  direct 
interference  with  a  State  as  such. 

Now  these  two  constitutions,  State  and 
National,  were,  as  you  know,  for  the  first 
time  put  in  writing  by  our  forefathers — the 
first  written  constitutions  in  the  history  of 
the  world.  For  the  English  Constitution 
is  not  contained  in  any  one  writing.  This 
double  safeguard,  or  set  of  constitutions. 
State  and  National,  were  drawn  up  with 
ends  in  view  which  were  almost  opposite 
to  each  other.  And  this  is  the  next  thing 
that  I  am  going  to  ask  you  to  remember. 
What  our  forefathers  were  afraid  of  in  the 
Federal  Government  was  an  aristocratic  or 
autocratic  rule,  or  a  remote  power  which 
might  come  to  interfere  with  their  domes- 
tic affairs.  Therefore,  the  influences  which 
restrained  and  limited  the  Federal  Con- 
stitution were  democratic.  Most  of  its  re- 
strictions were  drawn  up  by  men  like  Jeffer- 
son, jealous  of  any  government  which  was 
not  direct  from  the  people.  The  State  con- 
stitutions, on  the  other  hand,  were  rather 
aimed  at  protecting  the  propertied  classes — 

15 


THE  AMERICAN  CONSTITUTION 

the  aristocratic  classes — from  the  omnipo- 
tent legislatures  they  were  about  to  create. 
Therefore  the  restrictions  in  the  State  con- 
stitutions are  mostly  imposed  on  the  demo- 
cratic legislatures  in  the  interest  of  property 
or  of  order.  It  was  the  propertied  classes, 
the  educated  classes,  which  drew  up  the 
State  constitutions  and  insisted  most  upon 
them;  it  was  the  democratic  masses  rather 
who  watched  so  jealously  the  powers  about 
to  be  given  by  the  United  States  Constitu- 
tion. Some  things  they  were  all  united 
upon,  first  of  all  the  great  Bill  of  Rights; 
which  is  much  the  same  thing  in  both; 
those  marvellous  clauses  which  grew  from 
five  sentences  in  Magna  Charta  to  thirteen 
in  the  Bill  of  Rights  of  1689,  when  they  had 
had  experience  of  the  Stuart  tyranny,  and 
to  sixteen  in  the  Virginia  Bill  of  Rights,  and 
thirty  in  the  Constitution  of  Massachusetts; 
and,  in  the  Federal  Constitution,  the  first  ten 
amendments.  These  are  the  fundamental 
things;  and  the  people  of  the  United  States 
refused  to  adopt  the  Constitution  itself  un- 
less these  ten  amendments  were  promptly 
added;  and  so  it  was  done.  These,  in  other 
words,   are   the   principles   they   cared   for 

16 


THE  MEANING  OF  THE  CONSTITUTION 

most;  and  these  are  the  principles  of  which 
I  shall  try  to  explain  the  importance  in 
these  lectures.  Remember,  it  was  the  peo- 
ple under  Jefferson  who  said  to  the  Federal 
Government:  **Thus  far  shalt  thou  go  and 
no  farther";  it  was  the  educated,  propertied 
classes,  the  Federalists  at  home  in  their  own 
States,  who  said  the  same  thing  to  the  State 
legislatures  to  whose  local  government  their 
personal  liberties  and  private  fortunes  were 
about  to  be  intrusted.  And  the  historical 
reasons  for  both  are  that  during  the  Revo- 
lution we  had  disastrous  experience  of  om- 
nipotent State  legislatures,  for  the  first  time 
clothed  with  boundless  power  and  recklessly 
using  it,  and  in  the  Revolution  also  we  had 
experience  of  the  weakness  of  a  national 
power  which  could  not  enforce  its  laws  di- 
rectly upon  the  people  of  the  States.  One, 
therefore,  is  meant  to  frame  a  Nation,  the 
other  to  organize  the  States;  but  both  were 
carefully  limited,  the  one  in  the  interest  of 
the  people  and  the  States,  the  others  in  the 
interest  of  the  people  alone. 

But  neither  Constitution  was  or  is  a  mass 
of  dry  bones.  The  very  definition  of  a 
Constitution  is — the  expression  of  the  peo- 

17 


THE  AMERICAN  CONSTITUTION 

pie's  liberties;  and  both  Federal  and  State 
constitutions  were  devised  to  secure  this; 
but  the  one,  rather  poHtical  liberty,  in  and 
from  the  government  at  Washington;  the 
other,  rather  personal  liberty,  for  the  people 
themselves  and  their  possessions  at  home. 
Remember,  again,  the  two  great  differences 
we  have  made  from  the  English  Constitu- 
tion; first,  the  separation  of  the  powers,  and 
second,  the  subordination  of  the  government 
and  even  of  Congress  or  the  State  legis- 
latures to  the  permanent  will  of  the  people 
as  expressed  in  a  written  document  which 
they  alone  could  alter.  And  this  is  the  great 
difference  between  English  freedom  and 
American  freedom  to-day.  Under  the  Eng- 
lish Constitution  the  House  of  Commons  is 
the  people,  is  the  sovereign;  anything  it  does 
is  right,  constitutionally  speaking.  With 
us,  not  Congress,  not  the  legislatures,  but 
the  people  remain  sovereign.  We  never 
have  parted  with  our  sovereignty.  Our 
legislatures.  State  and  National,  merely  rep- 
resent the  people;  and  that  in  a  carefully 
delimitated  scope  of  authority.  If  Con- 
gress or  a  State  legislature  transcends  that 
authority  which  they  derive  from  the  peo- 


THE  MEANING  OF  THE  CONSTITUTION 

pie,  or  when  the  Executive  does  so,  even  the 
President  of  the  United  States,  the  courts  are 
bound  to  take  no  notice  of  such  acts;  not 
to  destroy  such  laws,  as  those  who  would 
make  the  courts  unpopular  are  fond  of 
saying,  but  to  apply,  where  two  rules  clash, 
the  higher  rule;  that  is  to  say,  not  the  will  of 
the  present  President  or  Congress,  but  the 
permanent  will  of  the  sovereign  people  as 
expressed  in  the  written  Constitution. 

I  need  no  apology  for  presenting  this  sub- 
ject at  this  time.  The  English  people,  in  a 
thousand  years'  experience,  have  found  that 
their  liberties  were  never  so  really  in  danger 
as  when  they  knew  it  least,  never  so  nearly 
lost  as  under  the  kings  they  liked  best. 
They  were  in  no  danger  from  kings  like 
John;  it  was  from  John  they  won  Magna 
Charta  itself.  They  were  in  no  danger  from 
kings  like  Charles  I.  They  had,  it  is  true, 
a  big  fight  for  their  liberties  then,  but  they 
were  never  really  in  danger.  It  was  Charles's 
head  that  was.  But  under  Elizabeth,  under 
Henry  VIII,  and  under  George  III  (who, 
we  must  remember,  was  a  very  popular  king 
in  England)  they  lost  so  many  of  their 
birthrights  that  it  took  sometimes  a  century 

19 


THE  AMERICAN  CONSTITUTION 

to  win  them  back.  Of  course  it  was  easier 
for  them  to  lose,  and  harder  to  win  back, 
because  their  Constitution  was  not  in  writ- 
ing, was  not  definite.  It  was  always  open 
to  Henry  VIII  or  Charles  I  to  deny  that  the 
constitutional  principle  for  which  they  were 
contending  really  existed.  But  the  fact  re- 
mains that  these  principles  were  destroyed 
or  were  surrendered  or  taken  away  from 
them  usually  when  the  people  were  of  one 
mind  with  the  king;  usually  when  they 
themselves  were  willing  to  subordinate  their 
liberty  birthrights  to  the  passion  for  equality, 
or  to  some  other  immediate  end.  And  this 
is  natural.  When  a  people  is  unanimous — 
as  we  now  are — on  most  of  the  things  that 
we  desire,  we  may  carelessly  adopt  a  means 
that  seems  to  be  a  short  cut  that  way,  though 
it  be  destructive  in  later  times,  or  in  other 
hands,  of  government  by  the  people  itself. 
And  it  seems  as  if  a  portion,  or  a  party,  of 
our  people  were  in  danger  of  adopting  the 
European  view  of  government  and  of  law- 
making— that  law  is  a  command  of  the  sov- 
ereign, not  a  custom  of  long  growth  among 
a  free  people;  that  a  legislature  or  a  sovereign 
nation  is,  or  ought  to  be,  omnipotent;  and 

20 


THE  MEANING  OF  THE  CONSTITUTION 

that  whatever  power  a  European  Great 
Power  had  or  has  necessarily  resides  in  our 
Executive  or  in  Congress — although  the 
whole  history  of  our  Republic  is  that  it  is 
the  first  great  attempt  of  a  free  people  to 
keep  certain  of  such  powers  in  their  own 
hands — at  least  until  they  choose  to  give 
them  up — and  to  base  for  all  time  their 
own  national  career  upon  undying  princi- 
ples, as  written  in  those  tablets  wherein  our 
people  have  expressed  their  will  only  to 
be  governed  and  their  desire  that  by  them 

alone  their  Republic  shall  endure. 

****** 

Now  I  am  going  to  take  up  this  course 
in  the  inverse  order  of  the  title.  That  is 
to  say,  I  am  going  to  speak  of  the  liberties 
of  the  people  first.  Broadly  speaking,  what 
are  they  ?  They  may  be  divided  into  three 
broad  streams,  each  one  of  which  is  con- 
tained in  Magna  Charta  itself:  The  right 
to  life  and  liberty — the  right  to  property, 
whereby  a  man's  liberty,  that  is  to  say,  his 
powers,  are  increased — and  the  right  to 
law.  And  I  am  going  to  take  these  up  also 
in  their  inverse  order,  beginning  with  law: 

What  is  the  right  to  law  ?     I  am  going  to 

21 


THE  AMERICAN  CONSTITUTION 

try  to  define  what  I  mean  at  the  end  of  this 
lecture,  though  I  shall  have  time  to  amplify 
it  in  the  next;  and  let  me  say  here  that  one 
great  difficulty  I  am  going  to  have  in  this 
course  is  in  making  you  see  what,  in  a  sense, 
you  have  always  seen.  We  are  not  con- 
scious of  the  air  we  breathe;  but  if  some 
Martian  from  another  planet  who  got  on 
without  air,  should  come  to  us,  he  would  be 
very  conscious  of  it  indeed.  Now  the  right 
to  law  is  like  this.  The  right  to  law,  as 
known  to  Anglo-Saxon  peoples,  is  something 
which  has  not  any  parallel  in  any  other 
country  in  the  world  and  which  never  had 
any  like  elsewhere  in  any  time.  It  is  utterly 
unknown  even  to  such  countries  as  Germany 
and  France.  It  is  so  unknown  that  it  is  not 
even  understood  there  except  by  their  stu- 
dents; while  it  is  hardly  understood  by  us 
just  because  we  are  so  used  to  it  that  we 
cannot  understand  anything  else.  In  Ger- 
many, if  anybody  injures  you  under  pre- 
tence of  government  authority,  that  is  to 
say,  if  he  is  the  Emperor,  or  a  member  of 
the  government,  or  a  judge,  or  a  soldier,  or 
a  policeman,  because  of  that  fact  you  have 
no  legal  right  to  sue  in  the  ordinary  way. 

22 


THE  MEANING  OF  THE  CONSTITUTION 

The  wonderful  Anglo-Saxon  principle,  on 
the  other  hand,  is  and  always  has  been, 
since  it  was  re-established  against  the  Nor- 
man kings,  that  there  is  nobody  so  high  as  to 
be  above  the  law.  If  the  emperor,  or  a  soldier, 
or  a  general,  or  a  policeman,  does  what  you 
think  he  has  no  legal  right  to  do,  you  can 
have  the  law  on  him — a  vulgar  phrase,  which, 
like  many  vulgar  phrases,  is  pithy  with  ex- 
act truth.  I  repeat  that  in  Continental 
countries,  to  say  nothing  of  Asiatic,  there  is 
no  such  thing  as  having  the  law  upon  a 
man  who  pretends  to  act  under  some  gov- 
ernment authority.  They  have  a  whole 
system  of  privileged  law — what  they  call 
Administrative  law — devised  for  the  use  of 
government  functionaries  alone.  From  this 
the  plain  citizens  are  excluded.  But  with 
us,  if  the  President  of  the  United  States 
interferes  with  your  liberty  unlawfully,  you 
can  resist  him,  both  by  force,  in  proper  cases, 
and  always  by  suit  in  the  courts.  If  a 
magistrate  arrests  you  without  proper  cause 
you  can  sue  him  just  as  much  as  if  he  were 
not  a  magistrate.  If  a  commission  seizes 
your  property,  you  can  appeal  to  a  jury. 
Every    English    freeman,    every   American 

23 


THE  AMERICAN  CONSTITUTION 

citizen,  is  entitled  to  have  his  law — to  have 
his  rights  tested  in  his  own  courts — in  his 
own  courts,  mind  you,  not  in  some  other 
court  in  some  remote  place,  or  in  some  other 
government  tribunal — this  was  what  they 
dearly  struggled  for  in  England — not  be- 
fore a  Star  Chamber  or  a  Government  Board 
or  a  Royal  Commission — but  in  the  plain 
county  common  law  courts — in  his  own 
courts  at  home,  and  as  against  anybody. 
He  can  sue  anybody  there,  and  he  cannot 
be  haled  away  for  trial  to  any  lofty  or  re- 
mote tribunal.  Violation  of  this  principle 
by  George  III  is  what  the  Declaration  of 
Independence  complained  of:  we  were  made 
to  stand  trial  in  England,  where  we  could 
not  bring  our  witnesses,  or  have  the  judg- 
ment of  our  neighbors.  This  principle — 
the  right  to  law — equal  law — was  thor- 
oughly established  back  in  England  as 
early  as  the  reign  of  Saxon  Edgar,  re-es- 
tablished under  Henry  II,  and  is  the  car- 
dinal difference  between  the  rights  of  an 
English  citizen  and  those  of  other  countries. 
We  have  the  right  to  law,  and  the  law 
against  anybody;  they  have  no  right  to  law 
against  the  government  or  those  in  authority. 

24 


THE  MEANING  OF  THE  CONSTITUTION 

This  is  a  thing  which  Continental  people 
cannot  understand  and  which  Americans 
or  English,  travelling  in  Continental  coun- 
tries, have  always  been  so  full  of  that  it 
brings  them  into  difficulties.  That  is  to 
say,  if  a  Frenchman  is  arrested  by  a  man 
in  uniform,  the  last  thing  that  would  occur 
to  him  is  the  notion  that  he  has  any  right 
to  resist  or  to  make  question.  At  most  he 
may  humbly  ask  what  his  offence  has  been. 
An  Englishman  or  an  American,  on  the  other 
hand,  when  his  personal  liberty  in  any  way 
is  interfered  with  by  anybody,  whether  a 
soldier,  or  a  policeman,  or  a  general,  or  a 
judge,  wishes  at  once  to  know,  what  for  ? 
and  he  has  the  right  to  know,  what  for!  and 
to  test  it  in  his  own  law  courts.  And  that 
permanent  and  universal  right  to  law,  as 
against  anybody,  belonging  to  everybody, 
is  the  first  and  almost  the  greatest  of  the 
people's  liberties. 

And  now,  what  is  this  law  ?  and  this 
brings  out  another  fundamental  difference 
between  Anglo-American  and  European 
freedom.  The  English  notion  of  law  is 
diametrically  opposed  to  the  Continental, 
Norman,  or  Roman  notion — as  different  as 

25 


THE  AMERICAN   CONSTITUTION 

black  from  white,  or  as  sound  from  sight. 
The  two  conceptions  of  law  are  so  different 
that  there  really  is  almost  no  relation  be- 
tween them — and  asking  you  kindly  to  re- 
member this  difference,  I  will  close  with  it. 
In  brief,  the  English  notion  of  law  is  the 
custom  or  usage  of  a  free  people,  not  orig- 
inally expressed  in  writing,  and  not  com- 
manded by  anybody  except,  possibly,  the 
people  themselves.  The  Continental  notion, 
which  was  the  Roman  notion  and  hence  the 
Norman  notion,  is  the  command  of  a  sov- 
ereign to  his  subject,  necessarily,  therefore, 
written,  and  made  new  by  the  king.  It  is 
created  by  the  government,  to  whom  the 
people  are  subservient;  not  born  of  the 
people,  of  whom  the  government  itself  is 
the  creation.  It  may  bear  no  relation  to 
custom  or  usage,  or  past  history  or  even 
common  sense.  It  is  an  order,  as  from  a 
master  to  his  slave.  English  law — Saxon 
law — on  the  other  hand,  is  the  usage  that  a 
free  people  have  had,  a  matter  of  custom 
which  everybody  is  supposed  to  know,  and 
which,  in  theory  at  least,  has  lasted  for  all 
time,  something  like  a  law  of  nature.  It  is 
not   commanded    of  you   by   anybody,    in 

26 


THE   MEANING   OF  THE  CONSTITUTION 

original  theory;  it  is  simply  that  code  of 
customs  by  which  your  acts  are  judged  and 
which  may  enable  you  to  take  the  law  into 
your  own  hands — for  this  was  the  original 
remedy.  That  is  to  say,  in  the  year  600 
or  700  there  were  certain  cases,  certain 
offences,  which  put  a  man  out  of  law;  that 
is  the  origin  of  the  word  ''outlaw."  There- 
upon you  could  kill,  him,  or  avenge  yourself 
on  him,  as  the  law  allowed.  If  a  man  took 
your  cattle,  or  if  he  injured  your  person,  you 
had  the  right  to  avenge  yourself  upon  him 
to  a  certain  definite  extent,  ranging  all  the 
way  from  killing  him,  down  through  per- 
sonal chastisement,  to  a  mere  money  fine. 
You  executed  the  law  yourself;  or  your 
neighbors  helped  you.  It  was  not  done  for 
you  by  a  king.  Later,  as  civilization  im- 
proved, it  was  done  for  you  by  the  whole 
people,  through  their  courts;  originally  by 
your  neighbors,  witnesses,  who  stood  by 
you  in  surety. 

This  difference  is  so  radical  that  we  must 
never  lose  sight  of  it.  English  law,  Ameri- 
can law,  is  in  theory  the  established  customs 
of  a  free  people.  All  other  law  in  the  world 
is  the  order  of  a  sovereign  to  a  subject. 

27 


THE  AMERICAN  CONSTITUTION 

Under  the  Norman  kings,  it  is  true,  writs 
were  brought  in  the  name  of  the  king,  *' We, 
John,  command  you,"  etc.,  but  this  was 
only  their  formula.  Writs  in  our  States  run 
in  the  name  of  the  people;  for  instance,  "In 
the  name  of  the  people  of  the  State  of  New 
York,  by  the  grace  of  God  free  and  inde- 
pendent." When  a  trespass  was  committed 
in  Norman  England,  it  was  claimed  to  be 
committed  against  the  peace  of  the  king, 
and  so  it  is  termed  in  the  law  process  still; 
with  us,  it  is  against  the  peace  of  the  people. 
The  attempt  of  the  Norman  kings  to  intro- 
duce European  notions  of  law,  Continental 
notions  of  royal  authority,  was  successfully 
resisted  by  the  English  people  in  the  first 
two  centuries  after  the  Conquest,  so  that  in 
substance  their  law  is  the  same  as  ours;  but 
the  effort  of  the  Norman  kings  to  introduce 
Continental  ideas  remains  in  the  words  that 
I  have  quoted— ''against  the  peace  of  the 
king";  and  suits  are  still  in  theory  tried 
coram  rege — before  the  king  as  the  fountain 
of  justice.  Stubbs  tells  us  that  in  a  sense 
the  great  struggle  of  the  English  people 
under  the  first  Norman  kings  was  to  es- 
tabhsh  that  the  peace  of  the  realm  was  the 

28 


THE  MEANING  OF  THE  CONSTITUTION 

peace  of  the  people  and  not  the  king's  peace. 
Not  a  mere  phrase,  you  see,  but  a  very  real 
meaning.  Is  it  the  government  that  is 
sovereign,  or  is  the  government  but  the 
servant.?  They  struggled  successfully;  and 
all  vestige  of  the  Norman  attempt  to  foist 
European  ideas  of  law  and  government  upon 
the  English  people  has  been  swept  away, 
with  the  exception  of  a  few  mere  forms. 
We  shall  find  the  same  thing  when  we  come 
to  law-making.  Under  European  theories 
the  law  is  made  by  the  king,  as  I  have  said; 
it  is  the  order  of  the  Crown  to  the  subject. 
Under  English  theories,  it  is  made  first  by 
the  whole  body  of  the  people,  then  by  their 
representatives  in  Parliament.  The  Norman 
kings  insisted  on  their  royal  form,  and  every 
act  of  the  British  Parliament  is  still  signed 
"The  king  so  wills";  but  Parliament  or  the 
people  very  early  got  the  substance  back, 
and  established  their  right  to  make  the  laws 
themselves.  It  is  characteristic  of  the  Eng- 
lish people  not  to  care  for  forms  provided 
they  get  the  substance.  So  the  first  aspect 
of  English  constitutional  history  since  the 
Conquest  is  the  effort  of  a  free  people  to  re- 
establish two  ideas — the  right  of  everybody 

29 


THE  AMERICAN  CONSTITUTION 

to  law,  and  the  right  to  law  as  it  was  in  the 
time  of  Edward  the  Confessor;  that  is  to 
say,  to  the  customs  of  the  free  Saxon  people 
and  not  the  orders  of  a  feudal  lord.  And 
every  Norman  king  after  William  was  made, 
on  his  coronation  oath,  to  promise  this — ^the 
laws  of  Edward  the  Confessor — until  Magna 
Charta  came.  After  that  they  promised  to 
respect  Magna  Charta  instead. 

And  now  the  reason  why  we  had  to  have 
written  constitutions,  not  unwritten  as  in 
England,  is  because  with  us  the  people 
is  the  sovereign,  not,  as  in  England,  now 
the  House  of  Commons  and  formerly  the 
king;  and  our  legislatures  cannot  make  any 
kind  of  law  they  will,  but  only  such  as  the 
people  have  chosen  to  allow.  When  you 
have  the  people  sovereign,  possessing  all 
powers  and  only  parting  with  such  of  them 
as  they  choose  to  their  own  legislatures  or  to 
their  own  executive,  you  see  it  is  necessary 
to  have  a  written  constitution  in  order  to 
make  clear  just  what  powers  the  people  have 
given  away.  Without  a  constitution,  our 
legislatures  would  be,  like  the  English  Par- 
liament, omnipotent;  just  as  without  a  con- 
stitution the  English  king  would  be  omnipo- 

30 


THE  MEANING  OF  THE  CONSTITUTION 

tent.  The  one  end  and  aim,  therefore,  of 
a  constitution  is  to  protect  the  people's 
rights,  both  the  rights  of  the  whole  people, 
or  any  part  of  the  people,  or  even  of  one  man 
as  against  the  people,  in  such  cardinal  rights 
as  by  our  constitutions  he  is  declared  not 
to  have  given  away;  to  protect  them  against 
either  king  or  legislature.  This  is  consti- 
tutional government.  The  object  of  re  pub-  ^ 
lican  government  is  to  enforce  the  will  of 
the  majority;  the  object  of  constitutional  gov-  ^ 
ernment  is  also  to  protect  the  rights  of  the 
minority;  to  guarantee  to  each  and  every 
man,  to  every  class,  the  essential  rights  that 
he  must  never  part  with.  And  it  is  those 
cardinal  rights,  the  liberties  of  the  people, 
which  form  the  first  subject  of  these  lectures, 
and  the  first,  and  in  some  respects  the  great- 
est of  them,  is  this  right  of  every  man  to  law. 


31 


II 


CONSTITUTIONAL  RIGHTS  PECULIAR  TO 
ENGLISH  AND  AMERICAN  FREEMEN 

OUR  Constitution  adds  to  the  English 
two  great  principles,  the  separation 
of  the  powers  of  government  so  that  the 
same  man  or  body  of  men  can  never  both 
make  the  laws  and  administer  them,  or  ad- 
minister them  and  judge  those  who  break 
them;  and  that  our  people  are  protected  not 
only  from  the  Executive  power,  but  from 
reckless  or  unjust  legislation,  especially  by 
the  National  government;  by  defining  in  a 
written  Constitution  just  how  far  that  gov- 
ernment may  interfere  with  the  people's 
domestic  affairs,  and  leaving  the  determi- 
nation of  that  question  to  the  United  States 
Supreme  Court.  And  it  differs  from  it  in 
the  creation  of  two  governments  side  by 
side,  the  National  government  to  protect 
and  administer  the  affairs  of  the  Nation — 
not  a  mere  league  or  federation,  as  in  all  other 

32 


CONS  in  UTIONAL  RIGHTS 

historical  examples,  but  with  laws  and  courts 
working  from  the  centre  at  Washington  di- 
rectly on  the  States  and  on  the  people — and 
at  the  same  time  carefully  retaining  the  State 
governments  to  control  substantially  all  re- 
lations of  the  citizens  among  themselves,  to 
protect   their   lives   and    liberties,    regulate 
their  rights  of  property  and  both  raise  and 
expend  the  money  taken  from  them  by  way 
of  taxation.     For,  remember,  the  National 
government  was  practically  given  no  power 
of  imposing  taxes  directly  on  the  people,  and 
this  alone  would  indicate  that  it  was  not 
supposed  to  concern  itself  overmuch  with 
their    domestic  affairs.     Our  written   con- 
stitutions express  the  permanent  will  of  the 
people,  while  our  laws,  our  Acts  of  Congress, 
or  our  State  statutes,  are  merely  the  opinion 
of  a  present  majority  of  their  representatives ; 
and  in  this  country  the  people  are  sovereign 
and  not  the  Legislature,  as  in  England,  or 
the  Executive,  as   in   European  countries. 
A  wonderful   self-restraint  was   shown   by 
our  Constitution  makers  when  they  made 
ours   a   protection   against   our  own   legis- 
latures as  well  as  the  Executive;  an  enlight- 
ened jealousy  of  too  much  government  of 

3i 


THE  AMERICAN  CONSTITUTION 

any  sort,  of  the  Federal  Congress  because 
it  was  remote  and,  as  they  feared,  undemo- 
cratic, and  might  grow  too  powerful,  so  as 
to  take  the  liberties  away  from  the  people  or 
from  the  States;  and  of  our  State  legislatures, 
which  had  exercised,  during  the  Revolution, 
indefinite  powers,  when  they  put  restrictions 
in  the  State  constitutions  limiting  them  also. 
Now  this  jealousy  has  not  decreased,  but 
rather  increased  as  time  goes  on.  The  later 
State  constitutions,  especially  those  of  the 
far  Western  and  Southern  States,  most  not- 
able of  all,  that  of  Oklahoma,  increase  very 
much  the  number  of  these  restrictions;  so 
that  there  is  not  to-day  in  the  Union  prob- 
ably any  State  whose  legislature  has  so  much 
power  as  that  of  the  State  of  Massachusetts, 
while  in  these  newer  States  their  wings  are 
clipped  so  much  as' almost  to  take  away  their 
character  of  representative  government.  Still 
more,  of  late,  is  this  being  done  where,  as  in 
the  newer  Western  States,  by  the  initiative 
and  referendum,  the  people  are  allowed  not 
only  to  make  laws  directly  without  the  inter- 
vention of  any  legislature,  but  to  have  a 
veto  whenever  they  demand  it  on  the  acts 
of  the  legislature  itself.     On  the  other  hand, 

34 


CONSTITUTIONAL  RIGHTS 

I  suppose  the  fear  of  the  powers  of  the  Fed- 
eral Government  has,  on  the  whole,  de- 
cidedly decreased  in  the  one  hundred  and 
twenty  years  since  the  Federal  Constitution 
was  adopted.  The  reason  for  this  was,  of 
course,  the  Civil  War,  and  the  issues  which 
led  up  to  it;  which  showed  conclusively  to 
all  of  us  that  the  people  of  the  United  States 
must  be  considered  one  nation,  and  that 
the  government  must  be  truly  national  and 
not  merely  a  federal  compact.  Still,  the 
Federal  Government,  as  such,  has  no  direct 
power  over  the  States,  except  in  the  one  in- 
stance of  their  failing  to  maintain  a  re- 
publican form  of  government.  Nothing 
has  happened  in  that  particular  to  alter 
the  Constitution  or  our  understanding  of  it 
during  the  last  hundred  and  twenty  years. 
The  term  ''States'  rights"  is  a  misleading 
one  to-day,  because,  as  a  result  of  the  War, 
we  are  apt  to  think  of  it  solely  in  connection 
with  a  State's  right  to  secede.  The  object 
of  the  Civil  War  was  to  settle  this  one  point. 
A  State  has  no  right  to  secede,  except  in 
one  instance.  Oddly  enough,  no  one  ap- 
pears to  have  noticed  this.  Just  as  the 
United  States  Government  may  interfere  if 

35 


THE  AMERICAN  CONSTITUTION 

a  State  does  not  keep  up  a  republican  form 
of  government,  so  a  State  may  get  out  of  the 
Union  under  the  terms  of  the  Constitution 
itself,  if  it  be  ever  deprived  of  its  two  Senators 
in  the  Senate.  All  other  rights  of  a  State — 
except  secession  from  the  Union — all  other 
rights  of  the  people,  remain  as  they  w^ere; 
except  only  that  the  States  are  now  ex- 
pressly prohibited  from  making  laws  aimed 
against  the  negroes.  It  is  still  true  that 
nobody  is  with  us  omnipotent,  neither  the 
legislature,  nor  the  army,  nor  the  President. 
Universal  power  is  placed  back  in  the  lap 
of  the  sovereign  people  itself,  as  it  was  a 
thousand  years  ago,  before  William  the 
Conqueror  was  born.  We  are,  in  a  sense, 
more  English  than  the  English.  We  have 
absolutely  gone  back  to  primal  Anglo- 
Saxon  principles. 

We  have  already  discussed  the  people's 
liberties  and  observed  that  they  might,  for 
convenience,  at  least,  be  divided  into  three 
general  fields — rights  to  law,  rights  to  liberty 
and  rights  to  property.  All  this  was  clearly 
expressed  in  Magna  Charta,  though  I 
warned  you  against  the  mistake  of  suppos- 
ing that  they  existed  there  for  the  first  time. 

36 


CONSTITUTIONAL  RIGHTS 

Magna  Charta  itself  is,  afrti-pui;p^rt#44^-4e, 
bmt  the  recognition  by  King  John  of  the 
peoples'  liberties  as  they  always  existed. 
It  begins  with  the  statement  that  it  is  made 
by  the  advice  of  his  people,  and  goes  on  with 
the  words,  "We  have  by  this  our  present 
charter  confirmed'';  does  not  even  say, 
enacted  or  granted.  I  then  took  up  the  Right 
to  Law,  and  tried  to  show  you  how  important 
it  was,  although  so  familiar  that  we  almost 
forget  to  think  of  it;  and  how  unusual  it  is  in 
the  science  of  government;  how  it  exists  with 
none  but  Anglo-Saxon  peoples.  The  right 
to  law,  in  other  words,  not  only  protects  one 
man  from  another,  but  it  protects  any  man 
or  class  of  men,  even  the  humblest,  from  the 
most  powerful,  or  from  the  government 
itself,  minorities  against  majorities,  indi- 
viduals against  the  government.  For  that 
reason  no  officer,  not  even  the  President, 
or  the  army,  is  placed  above  it.  To  take 
all— iikretration :  you  may  remember  that 
curious  story  in  a  German  city  a  year  or 
two  ago,  where  a  crook,  having  borrowed 
or  stolen  a  captain's  uniform,  marched  into 
a  considerable  town,  ordered  the  first  com- 
pany of  soldiers  he  met  to  follow  him,  went 


THE  AMERICAN  CONSTITUTION 


into  "the  town  hall,  ordered  the  rnayor  and 
council  to  hand  him  over  the  money  that 
was  in  the  treasury,  and  walked  away  with 
most  of  it.  It  never  occurred  to  anybody, 
not  even  to  the  mayor  of  the  city,  to  raise 
any  question  as  to  this,  proceeding.  The 
uniform  was  sufficient  and  covered  any  act. 
It  was  only  when  the  unsuspecting  mayor 
went  to  Berlin  that  the  fraud  was  discov- 
eredf  On  the  other  hand,  take  another 
example  here  in  Boston:  in  a  time  of  riot 
— in  a  time  of  real  disorder — a  company 
of  soldiers  on  State  Street  was  ordered  by 
the  captain,  in  order  to  protect  themselves 
against  attack  to  fire  on  a  mob.  They  did 
so,  and  some  of  the  mob  were  wounded  or 
killed.  Nevertheless,  and  to  the  surprise 
of  nobody,  not  even  King  George  himself, 
who  was  nevertheless  not  very  fond  of  Bos- 
ton at  that  time,  the  captain  who  gave  that 
command  was  promptly  tried  for  murder. 

This  suggests  the  next  point  peculiar  to 
Anglo-Saxon  liberty,  and  that  is  that  there 
is  only  one  kind  of  law — the  common,  ordi- 
nary law  of  the  people's  courts.  We  have 
no  separate  law  for  government,  no  ad- 
ministrative law,  no  martial  law.     People 

38 


CONSTITUTIONAL  RIGHTS 

talk  about  martial  law,  and  martial  law 
does  exist  or  may  exist  in  any  country  but 
England  and  the  United  States — never  with 
us.  That  is  another  of  those  fundamental 
truths  very  commonly  lost  sight  of  by  us 
and  by  our  newspapers,  who  all  the  time 
talk  glibly  about  martial  law  as  if  such  a 
thing  could  exist  in  England  or  our  own 
country.  That  was  the  great  complaint 
against  Charles  II,  and  is  the  thing  most 
spoken  of  in  the  Bill  of  Rights  given  by 
King  William,  that  the  habit  of  Charles 
was  to  try  people  by  martial  law  contrary 
to  the  laws  of  England.  In  an  enemy  s 
country,  in  time  of  actual  warfare,  there  may 
be  such  a  thing  as  martial  law  known  to 
English  courts;  although  even  that  is  not 
really  law,  but  just  the  will  of  the  com- 
manding officer.  But  in  no  time  of  peace 
and  in  no  domestic  State,  can  there  ever  be, 
lawfully,  martial  law. 

Even  for  the  government  of  the  army, 
to  establish  a  military  law  to  control  the 
army  and  navy,  they  have,  under  the  Con- 
stitution of  England,  to  make  a  new  act 
of  Parliament  each  year,  and  in  the  same 
manner   in   this   country   our   Constitution 

39 


THE  AMERICAN  CONSTITUTION 

forbids  any  appropriation  of  money  to  sup- 
port the  army  for  more  than  two  years. 
MiHtary  law,  you  understand,  is  the  law 
which  governs  the  army  and  perhaps  also 
the  militia  when  in  actual  service.  There 
must,  of  course,  be  something  of  this  sort; 
but  it  is  not  at  all  the  same  thing  as  martial 
law,  which  means  military  rule  as  applied 
to  the  free  people  of  the  country.  United 
States  soldiers  in  San  Francisco,  United 
States  soldiers  in  Pennsylvania  at  the  time 
of  the  late  coal  strike,  whenever  they  caused 
the  death  of  a  human  being,  whether  in 
self-defence  or  not,  and  whether  in  protec- 
tion of  property  or  not,  might  be,  and 
usually  were,  duly  and  properly  tried  for 
murder.  Therefore,  the  army  and  all  that 
it  means,  military  system,  militant  civiliza- 
tion, isfforouTs.  The  complaint  of  stand- 
ing armies  was  first  made  in  England  under 
the  Stuarts,  and  they  never  had  any  before 
that  time;  the  Petition  of  Rights  addressed 
to  Charles  I  makes  much  of  it,  and  the  Bill 
of  Rights  as  finally  granted  after  the  English 
Revolution  by  King  William  expressly  says 
that  "the  raising  or  keeping  a  standing  army 
within  the  kingdom  in  time  of  peace,  unless 

40 


CONSTITUTIONAL   RIGHTS 

with  the  consent  of  ParHament,  is  contrary 
to  law." 

The  other  distinctive  thing  about  law  in 
connection  with  Anglo-Saxon  ideas  of  liberty 
is  that  it  must  be  the  people's  law  and  the 
law  of  nearby  courts;  it  must  not  come,  save 
where  absolutely  necessary,  from  a  distant 
and  remote  place;  nor  must  people  be  re- 
quired to  go  to  that  distant  place  to  be  tried. 
This  is  the  distinctive  achievement  of  the 
first  two  or  three  centuries  after  the  Con- 
quest. They  won  back  the  notion  of  local 
law,  local  self-government,  and  the  right  to 
be  tried  by  their  neighbors  in  nearby  courts. 
One  of  the  grievances  stated  in  our  own 
Declaration  of  Independence  was  the  prac- 
tice of  King  George  III  of  transporting 
Americans  beyond  the  seas  to  be  tried  for 
offences;  and  it  also  complains  that  he  "has 
kept  up  standing  armies  in  times  of  peace 
without  the  consent  of  our  legislatures,  and 
has  affected  to  render  the  military  indepen- 
dent of  and  superior  to  the  civil  power,"  and 
as  bearing  particularly  on  the  right  to  law, 
note  that  it  also  complains  that  he  "has 
made  judges  dependent  on  his  will  alone  for 
the  tenure  of  their  offices  and  that  he  has 

41 


THE  AMERICAN  CONSTITUTION 

called  together  legislative  bodies  at  places 
distant  from  their  homes."  ,  Lastly,  I  tried 
to  make  it  clear  to  you  that  our  law  itself 
differs  world-wide  from  Continental  or 
Roman  law,  in  that  it  is  always  in  theory 
the  custom,  that  is,  the  will,  of  the  people, 
and  not  the  command  of  a  sovereign  to  a 
subject.  Finally,  the  reason  that  our  Con- 
stitution was  written  and  not,  as  in  England, 
unwritten,  is  that  with  us  the  people  are 
sovereign,  and  therefore  must  put  in  writing 
the  regulations  which  they  wish  to  impose 
on  their  own  legislatures. 

Closely  connected  with  the  right  to  law, 
is,  of  course,  the  right  to  liberty,  the  one 
right  standing  guard  to  the  other.  Now 
what  is  this  right  to  life  and  hberty?  The 
right  to  life,  of  course  you  understand,  and 
that  right  at  least  is  shared  by  the  people  of 
most  civilized  countries.  Even  the  govern- 
ment is  only  allowed  to  take  away  a  man's 
life  under  due  form  of  law.  But  the  word 
liberty  is  of  much  wider  scope.  It  means, 
first  and  foremost,  the  right  of  a  man  not  to 
be  restrained,  not  to  be  put  in  jail,  not  to 
be  confined.  That,  of  course,  you  under- 
stand also;  but  here  again  we  find  the  same 

42 


CONSTITUTIONAL  RIGHTS 

world-wide  difference  between  Anglo-Saxon 
notions  and  Continental  notions  of  a  man's 
rights.  When  with  us  a  man  is  arrested  by 
another  man,  he  brings  an  action  for  false 
imprisonment.  If  arrested  by  a  soldier  or 
policeman,  he  not  only  may  do  that,  but  he 
demands  to  know  at  the  time  what  he  is 
arrested  for,  and  asks  to  be  set  at  large  or 
released  on  bail  if  arrested  for  a  bailable 
offence.  And  the  law  is  so  jealous  of  this 
right  that  it  has  steadily  guarded  it  in  a 
thousand  years  in  this  most  simple  and  direct 
form;  a  writ  corresponding  to  habeas  corpus 
is  mentioned  in  Magna  Charta,  which  says 
that  it  shall  not  be  denied,  and  shall  be  given 
without  cost;  and  the  clause  just  before  that 
says  that  no  writ  shall  in  future  be  issued  so 
as  to  cause  a  free  man  to  lose  his  court. 
That  is  to  say,  to  take  him  away  from  his 
local  jurisdiction  and  take  him  before  the 
distant  kings.  Now,  there  are  practically 
only  three  roads  of  tyranny,  one  to  destroy 
a  man's  life,  another  to  take  away  his  lib- 
erty, and  the  third  to  deprive  him  of  his 
property;  and  the  second  is  the  more  usual 
and  effective  one.  For  six  hundred  years 
the   kings,  Norman,  Tudor  and  Stuart,  en- 

43 


THE  AMERICAN  CONSTITUTION 

deavored  to  get  around  this  writ  of  habeas 
corpus;  to  arrest  people  and  confine  them 
or  restrain  them  without  trial  and  without 
telling  why.  As  a  result  the  great  Habeas 
Corpus  Act  was  passed  after  the  English 
Revolution,  which  made  this  weapon  of 
liberty  complete.  Not  only  must  the  writ 
be  given  at  once  and,  as  a  matter  of  course, 
gratis,  but  it  had  to  be  open  to  everybody 
and  must  be  granted  at  any  time,  by  any 
judge,  day  or  night,  in  vacation  or  in  term 
time.  The  person  or  power  restraining  a 
person  of  his  liberty  must  produce  him  with- 
in a  short  time  and  the  prisoner  be  dis- 
charged within  two  days  unless  it  is  shown 
that  he  is  under  indictment  for  an  offence 
not  bailable. 

Now  even  to-day — and  I  have  made  care- 
ful inquiry — I  cannot  find  that  there  is  any- 
thing corresponding  to  this  in  Germany, 
France  or  any  Continental  country.  There, 
a  man  may  not  be  deprived  of  his  liberty  by 
another  individual;  but  if  he  is  taken  into 
custody  by  a  Government,  in  any  of  its  ca- 
pacities, it  is  not  for  him  to  reason  why. 

But  the  right  to  personal  liberty  is  much 
more  than  even  this.     It  includes  also  the 

44 


I 


CONSTITUTIONAL  RIGHTS 

constitutional  right  of  a  man  to  go  and  come, 
to  emigrate,  and,  if  a  citizen,  to  return; 
and,  finally,  the  right  not  to  be  banished. 
It  was  early  established  as  an  English 
principle,  and  it  is  so  with  us,  that  banish- 
ment from  the  country  cannot  be  imposed 
for  any  offence.  On  the  other  hand,  a  man 
may  not  be  restrained  if  he  wishes  to  go  out 
of  the  country;  and  in  the  United  States  he 
has  the  right  freely  to  move  from  one  State 
to  another.  This  right  is  so  jealously 
guarded  that  in  the  Supreme  Court  of  the 
United  States  a  law  of  Nevada  was  held 
bad  which  merely  imposed  a  tax  of  one 
dollar  on  stage-coach  passengers  who  might 
pass  through  the  State.  The  right  of  being 
unconfined  when  you  were  still,  and  of  mov- 
ing about  freely  when  you  wished  to,  even 
to  the  extent  of  leaving  the  country  when 
you  like,  is,  therefore,  one  of  our  essential 
liberties. 

And  now  there  is  another  great  difference 
between  English  and  American  liberty  under 
Saxon  law  and  the  liberty  of  other  peoples, 
a  fundamental  difference  between  the  entire 
law  system  of  the  English  people  and  of  all 
Continental  peoples,  which    began    at    the 

45 


THE  AMERICAN  CONSTITUTION 

very  beginning,  and  departure  from  which 
is  still  a  legitimate  source  of  grievance,  per- 
haps, among  our  laboring  classes.  Too 
much  has,  perhaps,  been  made  of  the  phrase 
"government  by  injunction."  I  have  no 
desire  to  attack  the  valuable  procedure  of 
courts  of  equity,  a  very  necessary  method 
of  ordering  people  to  do  or  not  to  do  certain 
acts.  Still  there  is  a  legitimate  objection  to 
stretching  this  great  power  too  far,  which 
is  evidently  vaguely  felt  by  large  classes  of 
our  citizens,  but  no  one,  so  far  as  I  know, 
has  ever  noted  that  it  goes  down  to  the  very 
root  of  the  theory  of  English  liberty  under 
the  law.  Now,  if  I  can  only  make  clear 
what  I  mean  by  this  difference  in  the  few 
minutes  which  remain  to  me,  you  will  under- 
stand what  is,  perhaps,  the  greatest  differ- 
ence of  all  between  our  notions  of  what  law 
ought  to  do  for  and  against  the  individual, 
and  the  notions  of  all  Continental  countries. 
You  remember  that  I  said  that  the  Con- 
tinental notion  of  law  was  the  order  of  a 
sovereign  to  a  subject,  coupled  with  the 
threat  of  punishment  if  he  did  not  obey.  In 
other  words,  the  Continental  notion  of  law 
is  to  make  a  man  do  something  or  not  to 

46 


CONSTITUTIONAL   RIGHTS 

do  something,  and  this  is  the  Oriental  notion 
of  law  also.  You  have  only  to  read  any  tale 
in  the  Arabian  Nights  to  note,  what  still  re- 
mains true  of  all  Asiatic  peoples,  that  the 
caliph  or  the  shah  or  the  grand  vizier,  when 
one  man  complains  against  another,  if  he 
take  the  side  of  the  person  complaining,  at 
once  orders  that  other  man  to  do  something 
or  to  refrain  from  doing  something.  This  is 
ingrained  in  the  whole  notion  of  Oriental 
and  even  of  Roman  law.  Yet  it  is  just  one 
of  those  basic  facts  which  may  come  to  you 
with  some  surprise  when  I  tell  you  that  this 
idea  has  absolutely  no  place  in  Anglo-Saxon 
law  or  the  common  law  of  England  or  Amer- 
ica. The  common  law,  as  we  lawyers  say, 
speaks  only  in  damages.  It  has  no  notion 
of  ordering  a  free  man  to  do  something 
against  his  will.  Now,  this  I  know  may 
surprise  you,  but  it  is  the  exact  truth  and 
not  even  an  exaggeration.  Moreover,  it 
dates  from  a  time  where  man's  memory 
runneth  not  to  the  contrary,  and  still  re- 
mains as  true  as  it  ever  was  of  the  common- 
law  courts  to-day.  If  one  man  injure  an- 
other in  civil  matters,  if  you  win  your  case 
in  a  civil  action,  the  defendant — the  other 

47 


THE  AMERICAN  CONSTITUTION 

man — is  not  made  to  do  anything.  He  has 
only  to  pay  you  a  certain  sum  of  money. 
In  the  same  way,  even  in  criminal  cases, 
cases  brought  by  the  State  against  a  person 
who  has  broken  a  law,  if  a  man  is  found 
guilty,  he  is  never  ordered  to  do  anything, 
not  even  to  make  affirmative  restitution,  as 
might  be  the  case  in  an  Oriental  country; 
he  is  punished,  either  by  death  or  by  im- 
prisonment, or,  again,  made  to  pay  dam- 
ages in  the  nature  of  a  fine.  In  the  very 
first  glimpse  we  have  of  the  Saxon  peoples  in 
England  we  find  the  same  system  prevailing. 
The  notion  of  the  fine,  however,  was  car- 
ried to  an  extent  that  would  possibly  seem 
absurd  to-day,  for  then  every  man  had  his 
price  literally.  That  is  to  say,  the  life  of 
every  man  was  worth  a  certain  definite  sum. 
A  member  of  the  royal  family  was  worth 
ten  times  more  than  a  baron;  the  life  of  a 
baron,  ten  times  more  than  an  ordinary 
freeman  and  so  on.  If  a  man  was  mur- 
dered and  not  avenged  by  his  kindred — 
which  they  had  a  perfect  right  to  do — he 
was  liable  to  pay  a  fine  to  the  kindred  of  the 
person  slain,  and  this  principle  went  down 
through  minor  criminal  offences.     What  the 

48 


CONSTITUTIONAL   RIGHTS 

law  did  was  to  determine  what  actions  were 
right,  and  the  nature  and  amount  of  the 
penalty  for  such  as  were  wrong.  It  never 
ventured  to  order  a  man  to  do  any  definite 
act.  That  notion  was  altogether  too  for- 
eign to  the  ingrained  ideas  of  personal 
liberty  which  characterized  the  English 
people. 

Now,  that  principle  is  just  as  true  to-day 
in  1907  as  it  was  in  707;  and  when  an  in- 
junction or  an  order  of  a  court  of  chancery 
is  served  on  an  American  freeman,  he  resents 
it  just  as  much  as  his  ancestors  would  have 
done,  though  he  does  not  know  how  much 
historical  reason  and  justification  he  has 
for  his  dislike  of  such  process.  For  in- 
stance, one  of  the  great  grievances  in  the 
railway  strike  of  1903  and  in  the  recent  coal 
strike  of  West  Virginia  was  that  judges  or- 
dered men  riot  to  quit  their  work — which 
amounts  to  very  much  the  same  thing  as 
ordering  them  to  go  on  with  it.  Our  com- 
mon law  does  not  recognize  the  right  of  any- 
body, judge,  officer  or  United  States  Presi- 
dent, to  order  a  man  to  work  if  he  does  not 
wish  to,  or,  indeed,  to  order  him  to  do  any 
definite  act  or  thing.     If  he  does  wrong,  he 

49 


THE  AMERICAN  CONSTITUTION 

is  liable  under  the  common  law  for  the 
damages  caused  by  his  act,  liable  not  only 
to  the  person  injured,  or,  if  the  offence  be 
criminal,  to  a  penalty  or  a  punishment  im- 
posed by  the  State,  that  is,  by  the  whole 
people  in  their  courts.  But  he  is  not  sup- 
posed to  be  ordered  by  anybody  to  do  a 
thing  that  he  does  not  wish  to  do,  however 
harmless  it  be,  or  to  abstain  .from  any  act 
that  he  wishes  to  perform,  not  in  itself  crim- 
inal or  unlawful. 

Now,  how  did  this  un-English  right  of  the 
injunction  or  the  court  order  get  in  ?  It  is 
just  an  example  of  a  growth  upon  the  Eng- 
lish system  of  ideas  brought  over  from 
Normandy,  and  enforced  first  by  Norman 
kings  and  then  by  their  chancellors  or  chief 
justices.  It  is  really  a  Continental  or  Ro- 
man law  notion,  and  repeats,  in  last  analy- 
sis, the  power  of  a  king  to  order  his  sub- 
jects in  any  way  he  will.  At  first,  in  very 
early  times  after  the  Conquest,  this  power 
was  exercised  direct  by  the  King  or  by  the 
King  and  Council.  He  very  soon  got  into 
the  habit  of  handing  it  over  to  his  high 
judicial  officers,  one  of  whom,  known  then 
as  the  Justiciar,  was  given  this  jurisdiction 

50 


CONSTITUTIONAL  RIGHTS 

rather  in  criminal  matters,  while  the  other, 
known  as  the  Chancellor,  was  given  it  in 
civil  affairs.  From'the  Justiciar  historically 
grew  the  famous  court  of  Star  Chamber, 
which  was  abolished  after  the  English 
Revolution,  and  which  exercised  the  royal 
power  of  the  Crown  to  try  men  for  their 
actions  and  order  their  doings  in  Crown 
cases,  that  is,  in  criminal  matters,  or  matters 
supposed  to  be  criminal.  From  the  other 
grew  the  Court  of  Chancery,  which  existed  in 
theory  to  mitigate  the  rigor  of  the  common 
law  or  to  supplement  it  where  inadequate. 
This  part  of  its  jurisdiction  is,  of  course, 
sound  and  good;  but  it  also  shared  this 
extraordinary  un-English,  Norman  power 
of  ordering  a  free  citizen  to  do  something 
that  he  did  not  wish  to  do;  and  that  power  is 
found  amazingly  convenient  in  modern 
times  where  it  is  desired  to  control  the  ac- 
tions of  large  bodies  of  men  who  individu- 
ally, perhaps,  are  not  responsible  in  large 
money  damages,  or  when  it  is  either  in- 
convenient or  impractical  to  exert  the  rem- 
edy of  the  common-law  damage  suit  in  the 
courts. 

Under  our  industrial  system  a  state  of 

51 


THE  AMERICAN  CONSTITUTION 

things  has  developed  where  the  vast  bulk 
of  business  in  this  country  is  done  by 
persons  acting  together  under  the  name  of 
corporations;  and  under  our  Federal  sys- 
tem, under  the  Federal  Constitution,  where 
any  one  of  these  corporations  is  chartered 
in  a  different  State  from  that  where  the 
dispute  arises  or  where  its  adversary  lives, 
that  corporation  has  the  right  to  take  the 
litigation  and  the  power  of  regulating  its 
affairs  away  from  the  local  courts — away 
from  the  State  courts  sitting  where  the  people 
live  who  are  most  directly  concerned — up 
to  the  United  States  court,  probably,  in  the 
first  instance,  some  distance  away,  and  ulti- 
mately, of  course,  to  the  Supreme  Court 
at  Washington.  Under  the  recent  proposal 
of  having  all  corporations  which  do  inter- 
state commerce  business  (and  nearly  all 
corporations  do  some)  chartered  by  the 
United  States  Government,  all  litigation  of 
any  sort  in  which  they  are  concerned  would 
always  be  taken  away  from  the  State  courts, 
from  the  local  courts,  where  their  mines  or 
their  mills  are  situated,  and  carried  to  the 
Circuit  Court  of  the  United  States  or  to  the 
Supreme  Court  at  Washington.  It  has  al- 
52 


CONSTITUTIONAL  RIGHTS 

ready  grown  to  be  the  practice  of  most 
companies  not  to  rely  on  the  State  courts  or 
the  local  courts  near  where  their  works  are, 
which,  with  or  without  reason,  they  distrust, 
as  being  more  in  sympathy  with  the  people, 
but  to  go  straight  into  the  Federal  courts  and 
into  the  Federal  Courts  of  Chancery  under 
this  chancery  jurisdiction  we  are  discussing, 
whenever  they  can;  and  instead  of  suing  in 
damages  or  using  the  local  police  protection, 
getting  an  order  from  the  Federal  judge, 
addressed  to  the  whole  body  of  their  em- 
ployees, or  even  to  all  the  world,  ordering 
such  people  to  do  or  not  to  do  what  they 
wish  or  what  they  complain  of.  This  order, 
as  you  know,  is  termed  an  injunction — 
originally  the  highest  writ  of  the  royal  pre- 
rogative in  England,  but  now  given  to  all 
Federal  judges  of  any  description,  and  even 
to  many  judges  of  lower  courts  as  well.  This 
is  not  the  time,  nor  do  I  know  that  I  shall 
have  time  further,  to  go  into  this  matter. 
The  only  point  from  which  it  interests  us 
to-night  is  that  it  shows  up  this  fundamental 
difference  between  English  theories  of  law 
and  Continental  ones;  that  under  the  Eng- 
lish system  a  free  man  is  never  to  be  ordered 

53 


THE  AMERICAN  CONSTITUTION 

by  the  courts  to  do  something,  but  only  to 
stand  by  the  consequences  of  his  acts  in 
damages,  if  he  ought  to  pay  damages,  or 
be  imprisoned,  if  he  ought  to  be  imprisoned; 
while  under  royal  Norman  ideas  this  high 
power  of  the  injunction  writ  or  the  manda- 
mus grew  from  the  old  power  of  the  Norman 
absolute  monarch  to  order  his  subjects  to  do 
certain  definite  things  or  to  act  in  a  certain 
definite  way.  Under  it,  as  you  know,  if  a 
man  disobeyed,  he  was  punished  summarily, 
without  a  trial,  in  what  we  call  contempt 
process;  this  also,  therefore,  being  foreign 
to  ordinary  English  notions  of  procedure, 
which  always  involve  a  hearing  and  a  chance 
to  produce  witnesses  and  a  jury  trial. 

Chancery  powers  are  most  valuable,  and  it 
is  in  my  opinion  a  great  mistake  to  do  away 
with  them,  as  they  have  practically  done  in 
the  new  State  of  Oklahoma.  Nevertheless, 
if  abused,  they  will  now,  as  they  would  have 
a  thousand  years  ago,  cause  an  English 
people  such  resentment  that  they  will  abol- 
ish the  thing  entirely  instead  of  regulating 
it  properly.  The  one  point  I  now  wish  to 
make  is  that  this  is  a  genuine  distinction; 
and,  therefore,  we  may  call  this  the  third 

54 


CONSTITUTIONAL  RIGHTS 

great  difference  under  which  English  notions 
of  Hberty  differ  from  the  Hberty  of  people 
in  Continental  countries.  An  Englishman 
or  an  American  cannot  be  ordered  to  do  a 
thing  that  he  does  not  wish  to  do,  to  carry 
out  a  certain  line  of  action,  or  to  perform 
a  certain  service.  Indeterminate  services 
for  an  indefinite  time  or  even  for  a  long  time 
under  the  English  common  law  were  con- 
sidered the  same  as  slavery.  A  man  is 
liable  for  the  consequence  of  his  acts,  but 
no  one  can  control  them  or  direct  them 
against  his  will — no  individual,  no  officer, 
nor  the  State  itself. 

But  the  right  to  personal  liberty  is  far 
more  than  this  also.  It  includes  not  only  the 
right  to  be  free  and  move  around,  to  do  what 
one  will  and  be  responsible  for  one's  own 
acts,  but — and  this  is  getting  to  be  the  most 
important  of  all  to-day — it  includes  the  right 
of  a  man  to  labor  at  any  trade,  to  go  into  any 
business,  in  short,  to  earn  his  living,  or  to 
exercise  his  functions  or  faculties  in  any 
manner  soever  that  he  at  any  time  choose 
without  any  restraint  or  hindrance  or  com- 
bination against  him  on  the  part  of  the  State 
or  of  others.     This  is  the  great  personal  lib- 

55 


THE  AMERICAN  CONSTITUTION 

erty  right,  and  the  one  that  we  are  still  bat- 
thng  over  to-day,  for  the  other  two  or  three 
have  been  successfully  established.  No  one 
seriously  pretends  any  more  to  take  away 
a  man's  life  or  personal  liberty  without  due 
process  of  law.  But  the  right  to  control  a 
man,  or  to  interfere  with  him  in  his  business 
or  labor,  or  trade,  is  being  asserted  and  re- 
asserted more  and  more,  both  by  his  em- 
ployers and  his  employees,  and  by  his  com- 
petitors and  by  his  fellow-workmen,  or  even 
by  the  United  States  or  by  the  States.  Now, 
let  us  see  how  those  words  read  in  the  first 
written  expression  of  them,  that  is,  in  the 
Magna  Charta  of  Henry  III  and  of  John. 
John,  in  his  charter,  the  earliest,  uses  the 
simple  expression,  "No  free  man  shall  be 
taken,  or  imprisoned,  or  disseised,  or  out- 
lawed, or  exiled,  or  any  ways  destroyed,  nor 
will  we  go  upon  him,  nor  will  we  send  upon 
him  unless  by  the  lawful  judgment  of  his 
peers  or  by  the  law  of  the  land";  but  in  the 
re-issue  of  the  charter  by  Henry  HI  the  very 
significant  explanation  is  added  after  the 
word  "disseised"  (which,  as  you  know, 
means  deprived  of):  "No  free  man  shall 
be  deprived  of  his  freehold  or  of  his  liberties 

56 


CONSTITUTIONAL  RIGHTS 

or  of  his  free  customs,''  and  it  is  no  fantastic 
explanation  but  was  thoroughly  understood 
at  the  time  that  this  meant  also  the  right  to 
trade  or  labor,  the  right  to  earn  one's  living, 
and  the  right  to  be  protected  both  from  State 
hindrance  and  from  monopolies;  and  the 
great  Coke,  commenting  on  this  clause,  says 
that  the  word  "Liberties"  means  the  "gen- 
eral freedom  possessed  by  the  people  in  Eng- 
land, and  that  monopolies  in  general  are 
contrary  to  the  Great  Charter."  There  are 
also  other  expressions  in  Magna  Charta 
showing  this.  It  begins  by  saying  "  We  have 
granted  to  all  the  freemen  of  our  kingdom 
all  the  unwritten  liberties  to  be  had  and 
holden  by  them  and  their  heirs  forever.  .  .  . 
The  City  of  London  shall  have  all  its  ancient 
liberties  and  free  customs,  as  well  as  other 
cities,  boroughs,  towns  and  ports."  This 
particularly  means,  rights  to  a  livelihood, 
rights  to  labor  and  to  trade,  and  also  the 
rights  of  the  Guilds,  or,  as  we  should  say, 
trades  unions,  which  already  existed  in  the 
towns  at  that  time.  And  I  may  say  right 
here  that  there  were  two  ways  that  a  man 
got  free  in  England:  You  probably  know 
that  at  the  time  of  the  Norman  Conquest 

S7 


THE  AMERICAN  CONSTITUTION 

there  were  still  some  slaves — 25,000  are 
recorded  in  Doomsday  Book — and  several 
centuries  after  they  were  called  villeins,  that 
is  to  say,  farm  laborers  who  were  attached 
to  the  land,  not  paid  in  money  wages,  and 
who  were  not  allowed  to  leave  their  master's 
farm  or  seek  service  elsewhere.  This  class 
was  very  numerous  indeed.  Now  these 
two  ways  by  which  a  villein  or  slave  could 
always  get  free  in  England  were,  first,  by 
owning  land;  and  secondly,  by  joining  the 
guild  of  a  trade,  in  a  town,  and  working  at 
it  for  a  year  and  a  day.  In  a  sense,  there- 
fore, labor  is  the  source  of  freedom  in  Eng- 
land; for  many  millions  more  Englishmen 
got  free  through  this  door  than  by  any  other 
way.  This,  therefore,  is  a  right  peculiar 
to  American  and  English  freedom — the 
right  to  labor  or  exercise  any  trade.  On  the 
Continent,  the  absolute  right  of  a  man  to 
labor  and  trade  was  never  recognized,  nor 
the  right  to  earn  money  or  make  a  profit  in 
any  way  he  chose.  He  was  not  protected 
from  the  competition  of  the  State  or  other 
hostile  combinations  or  from  monopolies 
of  any  kind;  for,  while  the  English  Constitu- 
tion early  recognized  the  Guilds,  it  at  the 

58 


CONSTITUTIONAL  RIGHTS 

same  time  was  careful  to  provide  that  their 
by-laws  should  be  reasonable  and  to  forbid 
anything  that  was  in  restraint  of  trade.  I 
can  show  you  the  statutes,  almost  as  old  as 
Magna  Charta,  which  recite  that  the  Guild 
of  a  certain  town  has  made  a  by-law,  or 
combined  in  such  a  way  as  to  prevent  other 
people  from  exercising  their  trade — and 
such  by-laws  declared  for  that  reason  un- 
lawful. I  can  even  show  you  an  actual  case 
which  is  as  modern  as  the  Sugar  Trust  in  its 
principle;  in  fact  it  complains  of  the  very 
thing  that  our  trusts  are  now  said  to  do. 
In  1 22 1  the  Abbot  of  Lilleshall  went  to  court 
and  complained  "that  the  bailiffs  of  the 
town  of  Shrewsbury  had  made  many  in- 
juries against  his  liberty  in  that  they  have 
caused  proclamation  to  be  made  in  the  town 
that  none  be  so  bold  as  to  sell  any  mer- 
chandise to  the  Abbot  or  his  men  upon  pain 
of  forfeiting  ten  shillings," — and  he  won  his 
case.  The  court  decided  that  this  was  what 
we  should  call  a  "trade  boycott"  or  unfair 
competition,  and  against  his  liberties  as  a 
British  subject.  Now  this  great  principle 
has  always  been  law,  that  not  only  has  a 
man  right  to  labor  and  trade,  but  no  man 

59 


THE  AMERICAN  CONSTITUTION 

or  set  of  men  can  combine  against  him;  and 
that  there  shall  be  no  combination  in  re- 
straint of  trade,  no  agreement  to  restrict 
the  output,  to  fix  a  price,  or  to  increase  a 
price  or  to  injure  a  competitor  by  unfair 
methods.  But  this  great  principle  of  Eng- 
lish freedom  had  been  almost  forgotten. 
And,  as  I  told  you  at  the  beginning,  these 
subjects  we  are  discussing  I  select,  not  only 
because  they  are  important  and  funda- 
mental, but  because  they  seem  to  be  being 
forgotten  to-day.  Most  of  our  anti-trust 
legislation  was  not  really  necessary.  In- 
deed, we  had  the  intelligence  never  to  pass 
any  anti-trust  statute  in  Massachusetts. 
We  knew  that  the  law  was  there,  if  people 
would  only  enforce  It.  I  make  bold  to  say 
that  not  a  single  case  has  been  decided 
against  a  trust  which  might  not  have  been 
decided  equally  well  on  common-law  prin- 
ciples. 

But  now  let  us  take  the  other  side  of  it. 
We  have  been  talking  about  combinations 
of  capital  in  restraint  of  trade.  Now  let  us 
take  combinations  of  persons  to  interfere 
with  a  man  in  his  business  and  regulations 
of  the  State  to  prevent  it.     These,  as  I  have 

60 


CONSTITUTIONAL  RIGHTS 

said,  were  always  unlawful  in  England,  but 
not  so  on  the  Continent.  The  Guilds  in 
England,  while  in  many  respects  favored 
by  law,  were  never  allowed  to  control  other 
persons'  liberties.  In  Germany,  and  partic- 
ularly in  France,  on  the  other  hand,  they 
grew  so  arbitrary  and  so  powerful  that  they 
overshadowed  the  industrial  world.  It  was 
impossible  for  a  man  to  get  work  at  a  trade 
before  the  French  Revolution  without  the 
consent  of  some  Guild,  and  these  Guilds, 
mind  you,  had  long  ceased  to  be  the  unions 
or  combinations  of  the  workmen  themselves; 
they  had  grown  rich  and  aristocratic,  and 
very  often  did  no  labor  at  all,  were  not 
journeymen,  but  mere  combinations  of  em- 
ployers. The  result  was,  that  they  earned 
the  deserved  hatred  of  the  people;  and 
Carlyle  will  tell  you  that  the  day  of  the 
French  Revolution  which  announced  the 
absolute  abolition  and  destruction  of  all 
trade  Guilds  was  welcomed  with  bonfires 
and  the  ringing  of  bells  throughout  France. 
Labor  had  at  last  become  free  there — in 
England  it  always  has  been. 

And  so  with  us  the  Constitutions  of  North 
Dakota    and    Utah    declare    that    "every 

6i 


THE  AMERICAN  CONSTITUTION 

citizen  of  this  State  shall  be  free  to  obtain 
employment  wherever  possible,  and  any 
person  or  corporation  maliciously  inter- 
fering or  hindering  in  any  way  any  citizen 
from  obtaining  or  enjoying  employment 
already  obtained  from  any  other  corporation 
or  person  is  guilty  of  a  misdemeanor."  In 
Montana  and  Wyoming  "The  rights  of  labor 
shall  have  just  protection  through  laws  cal- 
culated to  secure  to  the  laborer  proper  re- 
wards for  his  services  and  to  promote  the 
industrial  welfare  of  the  State."  In  Louisi- 
ana "no  law  shall  be  passed  fixing  the  price 
of  manual  labor."  These  State  Constitu- 
tions well  express  the  Anglo-Saxon  idea. 


62 


Ill 


ENGLISH  LIBERTY  AND  THE  FREEDOM 
OF  LABOR 

THE  general  right  to  liberty  includes 
the  right  not  to  be  punished  by  maim- 
ing or  disfigurement;  the  right  to  the  liberty 
of  one's  motions  even  to  the  extent  that  one 
may  freely  enter  or  leave  the  country;  the 
right  not  to  be  banished  for  any  crime. 
All  these  rights  are  simple  enough  to  under- 
stand and  have  been  established  in  many 
centuries.  No  one  seriously  questions  them 
any  more,  though  there  has  been  an  occa- 
sional attempt  to  banish  convicted  crimi- 
nals from  the  States  of  the  Union  in  which 
they  reside.  The  Governor  of  Arkansas 
is  said  to  have  pardoned  such  a  man  on 
condition  that  he  come  to  Massachusetts. 
The  new  Oklahoma  Constitution  provides, 
however,  that  no  one  shall  be  banished 
from  the  State  for  any  crime  or  under  any 
legal  procedure — except,  of  course,  lawful 

63 


ENGLISH  LIBERTY 

extradition  under  the  United  States  Consti- 
tution. And  the  great  weapon  of  protection 
for  this  part  of  the  personal  hberty  right  is 
the  writ  of  habeas  corpus;  which  exists  to 
the  full  extent  in  no  other  than  English- 
speaking  countries. 

No  court  and  no  sovereign,  under  the 
Saxon  theory,  can  order  a  free  man  to  do 
anything  against  his  will,  or  even  punish 
him  for  not  doing  it  by  any  law  that  he  or 
his  representatives  in  the  Legislature  have 
not  consented  to.  The  Norman  process  of 
issuing  orders  from  the  King  or  his  Chancel- 
lor resulted  in  "Prerogative  writs,"  equity 
jurisdiction  and  the  doctrine  of  specific  per- 
formance, that  is,  requiring  a  man  to  carry 
out  his  contract  in  terms,  not  merely  to  pay 
money  damages  for  breaking  it;  in  Manda- 
mus, Injunction,  the  order  of  the  Crown  or 
the  sovereign  State  to  a  man  to  do  or  refrain 
from  doing  some  act  apprehended — this  led 
to  contempt  process;  that  is,  the  punishment 
of  the  parties  so  ordered  for  doing  or  not 
doing  the  act  complained  of — the  great 
point  being  that  English  law  never  speaks 
in  terms  of  an  order  from  a  sovereign  to  a 
subject;  but  only  requires  a  man  to  pay  the 

64 


ENGLISH   LIBERTY 

penalty  of  his  acts,  either  by  punishment  to 
his  person,  if  a  criminal  act,  or  by  damages, 
if  in  a  civil  court.  Under  the  accident  of 
our  double  sovereignty.  State  and  National, 
and  a  course  of  events  by  which  the  great 
bulk  of  our  business  has  come  to  be  done  by 
corporations  chartered  by  the  States,  and  not 
by  individuals,  and  the  fact  that  when  a 
suit  is  between  citizens  of  different  States, 
either  may  carry  it  into  a  Federal  court,  it 
has  become  the  usual  practice  of  corpora- 
tions when  complaining  or  complained  of 
to  withdraw  the  litigation  from  the  local 
courts  to  the  Federal  courts,  and  so  ulti- 
mately to  Washington;  and  instead  of  ap- 
pealing to  the  local  police  authorities,  or 
requiring  the  State  officials  to  maintain  the 
peace  of  the  State,  it  is  found  a  more  con- 
venient and  certain  remedy  to  go  into  a 
Federal  court  for  an  injunction  and  then, 
under  this  contempt  process,  secure  the 
imprisonment  of  anyone  who  disobeyed  it. 
The  abuse  of  this  remedy  has  led  to  the 
demand  for  jury  trial  in  all  cases  of  con- 
tempt of  an  injunction,  which  seems  to  be 
going  too  far.  Nevertheless,  the  objection 
is  an  old  one.     For  instance,  under  Edward 

65 


THE  AMERICAN  CONSTITUTION 

III,  as  early  as  the  year  133 1,  we  find  a 
statute  restraining  the  chancery  jurisdiction 
and  forbidding  the  arrest  or  conviction  of  a 
man  or  the  forfeiture  of  his  property  with- 
out a  jury  trial  in  a  common-law  court. 

The  one  thing,  however,  which  the  in- 
junction cannot  do  is  to  order  a  man  to 
carry  out  a  contract  of  personal  service. 
Anglo-Saxon  notions  of  individual  freedom 
prevailed  over  the  Norman  Chancellor  in 
this  one  exception;  so  that  to  this  day  a 
man  who  breaks  a  contract  for  personal 
service  is  -only  liable  in  damages.  He  can- 
not be  forced  by  any  court  to  render  the 
service;  and  in  the  same  way  indefinite 
service  for  a  long  period  of  time  is,  under 
our  ideas,  a  contract  of  slavery;  and  it  may 
not  be  enforced  in  any  court. 

An  even  greater  side  of  the  personal  lib- 
erty right,  more  important  at  least  to-day 
because  more  likely  to  be  denied,  is  the  right 
to  labor  and  to  trade;  to  acquire  thereby 
property,  to  exercise  one's  faculties  in  any 
lawful  way,  to  increase  one's  comfort  and 
one's  powers  by  the  acquisition  of  wealth 
or  the  exercise  of  property  rights.  This 
right  was  recognized  in  the  express  words 
66 


ENGLISH  LIBERTY 

of  Magna  Charta,  where  it  says  that  "no 
free  man  of  England  shall  be  deprived  of  his 
freehold  or  of  his  liberties  or  of  his  free  cus- 
toms"; for  this  expression,  under  the  law 
of  the  time,  was  understood  to  mean  the 
right  to  labor  at  any  trade,  to  earn  one's 
living  in  any  lawful  manner;  and  the  right 
to  be  protected  in  this  from  any  hindrance 
of  others,  either  physical  or  by  contract  in 
restraint  of  trade;  from  combinations  of  the 
Guilds,  or  from  monopolies  created  by  the 
State.  All  the  cities,  boroughs  and  ports 
of  England  were  to  have  all  their  ancient 
liberties  and  free  customs.  A  man  who 
labored  at  a  trade  for  a  year  and  a  day  was 
necessarily  a  free  man,  in  England,  even  as 
early  as  the  Norman  Conquest,  although 
he  had  been  a  slave  or  a  villein  before.  The 
Guilds  of  a  trade,  while  they  were  recognized 
and  expressly  protected  in  their  chartered 
liberties,  were  always  restrained  from  cre- 
ating by-laws  in  restraint  of  trade,  or  which 
should  lead  to  combinations  against  others 
in  the  same  trade,  or  of  other  trades,  not  to 
buy  of  or  sell  to  them — what  we  should  call 
a  boycott. 

In  1305  we  find  the  first  statute  against 

67 


THE  AMERICAN  CONSTITUTION 

conspiracy.  In  1360  another  statute,  of 
Edward  III,  for  the  first  time  allows  work 
to  be  done  in  gross,  that  is,  by  contract. 
Before  that,  under  the  statute,  all  laborers 
had  to  be  paid  by  the  day.  And  it  declares 
void  all  alliances  and  covins  between  masons, 
carpenters,  thatchers,  etc., or  between  Guilds, 
chapters  and  ordinances.  Repeated  statutes 
of  this  sort  were  passed,  until,  in  1436,  we 
find  the  exact  modern  words  used,  "All  by- 
laws in  restraint  of  trade  are  declared  un- 
lawful and  void.  No  guilds  nor  corpora- 
tions shall  make  unlawful  ordinances  as  to 
the  price  of  their  wares  for  their  own  profit 
and  to  the  common  hurt  of  the  people." 
This  sort  of  statute  is  repeated  many  times, 
and  in  1503  we  find  a  new  provision  that  the 
by-laws  of  the  Guilds  restraining  suits  at 
law  are  unlawful;  that  is  to  say,  if  a  man  is 
deprived  of  his  rights  in  a  trade  union,  no 
by-law  of  the  union  may  prevent  his  appeal- 
ing to  the  courts. 

The  right  of  a  man  to  get  fair  wages  for 
his  labor  was,  however,  denied  for  many 
centuries  in  England.  The  principle  that 
a  trade  combination  or  an  individual  has 
no  power  to  make  undue  profits,  could  not 
68 


ENGLISH   LIBERTY 

corner  the  market  or  buy  up  any  necessary 
of  life  and  then  hold  it  at  an  exorbitant 
price,  was  very  early  established,  indeed 
quite  as  early  as  the  twelfth  century,  and 
it  had  probably  been  law  before  that;  but 
for  many  centuries  also  the  attempt  to 
regulate  wages  was  made  in  England,  and 
it  succeeded  in  all  Continental  countries. 
Wages  there  were  fixed,  if  not  by  the  em- 
ployer, at  least  by  some  functionary  of  the 
State  in  his  interest.  This  had  probably  not 
been  the  case  in  England,  as  to  free  labor; 
but  early  in  the  fourteenth  century  the  plague 
of  the  Black  Death  nearly  depopulated  the 
country,  and  after  this  labor  was  so  scarce 
that  in  1349  the  first  Statute  of  Laborers 
was  passed,  which  required  everybody  to 
work  for  the  old  wages,  that  is,  the  wages 
before  the  Plague;  and  in  the  following  year 
this  was  fixed  by  law  at  one  penny  a  day  for 
common  laborers,  three  pence  a  day  for 
mowers,  two  or  three  pence  for  carpenters, 
three  or  four  for  masons,  one-half  a  penny 
for  servants,  and  so  on.  It  is  probable  that 
these  wages  represent  something  like  sev- 
enty-five cents  a  day  in  purchasing  power. 
At  that  time  the  Black  Prince,  the  head  of 

69 


THE  AMERICAN  CONSTITUTION 

the  army,  was  paid  twenty  shillings  a  day; 
that  is  to  say,  about  eighty  times  as  much 
as  a  skilled  laborer — less  in  proportion  than 
we  pay  the  President,  but  more  than  we  pay 
governors  or  the  judges  of  our  Supreme 
Courts.  This  notion  of  fixing  wages  had 
now  got  a  firm  hold.  It  is  repeated  over 
and  over  again  by  statutes  in  the  following 
two  centuries.  Able-bodied  laborers  were 
compelled  to  work;  and  they  were  com- 
pelled to  work  at  those  prices  which  were 
declared  lawful.  A  century  later  they  did 
give  up  the  attempt  to  fix  the  exact  price  by 
law,  but  provided  that  the  wages  of  artisans 
and  laborers  should  be  fixed  twice  a  year 
by  the  justices  of  the  peace.  This  law  in 
theory  existed  at  least  until  Elizabeth,  and 
was  not  expressly  repealed  until  1869.  The 
fight  of  the  working  classes  to  prevent  the 
fixing  of  their  wages  by  law  was  waged  for 
many  centuries  and  had  many  consequences. 
One  of  the  most  important  of  these  is  that 
in  England  a  strike  was,  for  many  centuries, 
considered  an  unlawful  conspiracy.  It  is 
easy  to  see  why;  when  the  rate  of  wages  was 
fixed  by  law,  and  a  penalty  imposed  for  pay- 
ing or  demanding  more,  the  combination  to 

70 


ENGLISH   LIBERTY 

obtain  more  became  an  unlawful  conspiracy; 
that  is,  a  combination  with  an  unlawful  end. 
This  notion  of  the  illegality  of  strikes  only 
disappeared  from  England  in  the  first 
quarter  of  the  nineteenth  century.  Fort- 
unately, we  never  had  it  in  this  country; 
nor  did  we  ever  consider  in  the  United  States 
or  any  of  them,  at  least  until  very  recently, 
that  the  wages  of  labor  could  be  fixed  by 
law.  In  the  Louisiana  Constitution  and  one 
or  two  others  there  is  an  express  provision 
that  the  rates  of  wages  never  shall  be  fixed 
by  law.  A  recent  amendment  in  New  York, 
however,  requires  that  the  State  or  any 
municipality — town  or  city,  or  contractor 
on  public  work — shall  pay  the  same  wages 
that  are  usually  paid  in  the  same  trade  at 
the  same  place  and  time. 

The  same  fight  for  free  contract  was 
carried  on  in  France  and  other  countries  in 
vain;  wages  fixed  by  the  State,  employment 
monopolized  by  the  Guilds,  existed  and  con- 
tinued to  exist  until  wiped  out  by  the  French 
Revolution.  We  now,  therefore,  have  to 
add  to  our  liberty  right  of  free  trade  or  labor, 
the  right  of  free  contract:  that  is  the  right 
of  a  man  to  demand  such  wages  as  he  can 

71 


THE  AMERICAN  CONSTITUTION 

get  and  to  refuse  to  work  for  them  if  not 
satisfied;  the  right  in  the  same  manner  to 
work  as  many  or  as  few  hours  as  he  choose, 
which  is  practically  the  same  thing;  and  the 
right  of  free  employment,  that  is,  the  right 
not  to  have  any  trade  made  a  close  corpora- 
tion. Hours  of  labor  were  curiously  regu- 
lated in  early  times.  Under  Queen  Eliza- 
beth they  were  fixed,  between  March  and 
September,  from  five  a.m.  to  seven  p.m., 
with  two  and  a  half  hours  "  for  meal  times 
and  drink  times  and  two  and  one-half  hours 
for  sleep";  from  September  to  May  the  hours 
were  from  dawn  to  sunset — and  this  is  still, 
or  was  recently,  the  law  in  the  State  of 
Georgia.  Wages  were  still  to  be  fixed  by 
a  justice  of  the  peace.  No  one  might  use 
any  manual  art  who  had  not  been  appren- 
ticed to  the  same.  Masters  were  prohibited 
from  discharging  servants  before  their  term 
without  reasonable  cause  or  a  quarter's 
warning;  and  no  servant  could  be  hired 
without  a  testimonial.  I  have  no  time  for 
more  of  these  things;  suflfice  it  to  say  in 
brief  that  the  conditions  and  rights  of  labor 
were  for  several  centuries  attempted  to  be 
regulated   by   law.     As   a   consequence   of 

72 


ENGLISH   LIBERTY 

this,  combinations  of  workmen  to  alter 
wages  or  conditions  of  employment  were 
thought  illegal.  But  this  latter  notion 
never  existed  in  the  United  States.  And, 
finally,  the  whole  attempt  at  regulation  by 
law  was  given  up,  and  the  entire  liberties 
of  the  laboring  classes  won  back,  even  in 
England,  early  in  the  nineteenth  century. 
One  sometimes  w^onders  whether  our  labor 
unions  already  wish  to  return  to  it. 

Monopoly  had  much  the  same  course,  but 
was  much  more  quickly  got  rid  of.  It  was 
always  abhorrent  to  English  notions;  and 
there  had  been  no  event  like  the  Black 
Death,  no  pretext  of  necessity,  which  caused 
State  interference  with  the  right  to  free  trade 
in  this  particular.  There  probably  never 
had  been  any  legalized  monopolies  in  Eng- 
land until  about  the  reign  of  Queen  Eliz- 
abeth. Anxious  to  raise  money  for  her 
wars,  she  discovered  the  principle  of  grant- 
ing patents;  that  is  to  say,  giving  licenses 
to  a  man  or  a  company  to  tax  a  certain  trade 
or  business,  or  to  deal  in  a  certain  com- 
modity, or  manufacture  a  certain  article, 
with  the  implied  promise  that  no  one  else 
should  be  allowed  a  similar  right.     In  1606 

73 


THE  AMERICAN  CONSTITUTION 

patents  began  to  be  granted  for  the  exclusive 
sale  of  articles,  even  which  were  not  in- 
ventions, but  it  was  only  twenty  years  later 
(1623)  that  the  great  Statute  of  Monopolies 
was  passed,  prohibiting  such  monopolies 
both  granted  and  to  be  granted,  giving 
remedy  in  double  or  treble  damages  to  any- 
one injured — ^just  as  we  to-day  under  the 
anti-trust  acts — making  exceptions  only  of 
the  charters  to  trade  Guilds,  tavern  licenses 
and  patents  for  inventions  and  copyrights. 
This,  with  the  exception  of  the  double 
damage  clause,  was  probably  the  common 
law;  but  the  beauty  of  the  statute  was  that 
it  prohibited  the  King  from  dispensing  with 
the  common  law  by  granting  such  licenses. 
Monopolies  in  England  had  a  very  brief 
sway,  therefore,  under  the  law;  and  it  is 
doubtless  one  of  the  constitutional  rights 
of  an  Englishman,  and  hence  of  an  Ameri- 
can, to  be  protected  from  them.  I  need  not 
point  out  that  such  was  not  the  case  in  Con- 
tinental, countries,  where  monopolies  have 
always  been  part  of  the  very  fabric  of  so- 
ciety. State  monopolies,  the  most  dangerous 
kind,  exist  in  all  European  countries  to-day. 
In  Austria,  Italy,  and,  I  think,  France,  the 

74 


ENGLISH  LIBERTY 

trade  in  salt  and  the  trade  in  tobacco  is  a 
State  monopoly;  and  in  nearly  all  countries 
individuals  or  bodies  of  men  were  given 
exclusive  charters,  either  by  the  State,  or  by 
the  town  or  city,  to  exercise  their  industry. 
Such  is  the  case  in  all  South  American 
countries — you  can  do  almost  nothing  with- 
out a  State  license — a  "  concession."  In  this 
country  and  in  England,  however,  monopo- 
lies created  by  the  State  or  Nation  are  just 
as  unlawful  as  any  other  kind.  A  man 
has  the  constitutional  right  to  exercise  any 
trade,  go  into  any  business,  and  not  to  be 
competed  with  by  the  State,  or  have  other 
individuals  or  corporations  favored  by  spe- 
cial license  or  privilege  at  his  expense.  Ab- 
stractly stated,  this  means  that  individu- 
alism and  not  socialism  is  the  principle  on 
which  our  government  is  based.  Socialism 
of  any  kind  has  never  been  recognized  or 
permitted  under  English  or  American  law. 
The  moment  any  statute  or  any  combina- 
tion was  perceived  to  embody  a  socialistic 
principle,  it  was  held  unconstitutional,  or 
unlawful,  as  the  case  might  be.  This  is  so 
fundamental  that  there  are,  even  in  all  our 
forty-six  States,  only  three  cases  in  which, 

75 


THE  AMERICAN  CONSTITUTION 

so  far  as  I  know,  the  principle  of  socialism 
is    discussed    abstractly.     Some    ten    years 
ago  a  Texas  judge  refused  to  naturalize  an 
immigrant  who  was  a  professed  socialist,  on 
the  express  ground   that  the   Constitution 
of  the  United  States  required  a  republican 
form  of  government;  and  that  this  is  not  con- 
sistent with  socialism.     There  is  no  express 
provision  on  socialism,  using  the  word,  in 
the  Constitution  of  any  State.     The  new 
Oklahoma   Constitution   declares   that   the 
right  of  the  State  to  engage  in  any  occupa- 
tion or  business  for  public  purposes  shall 
not  be  denied  or  prohibited,  except  that  it 
shall  not  engage  in  agriculture.     This,  in- 
deed, is  the  declaration  of  a  socialistic  prin- 
ciple, at  least  in  possibility,  which  may  have 
caused  the  President  to  question  whether  it  is 
compatible  with  a  republican  form  of  gov- 
ernment.    While,  on  the  other  hand,  the 
new  States  of  Washington   and  Utah  ex- 
pressly say  that  the  object  of  government  is 
to  protect  and  maintain  individual  rights. 
In  the  older  States  the  provisions  concern- 
ing  liberty    and    property   were    doubtless 
considered    sufficient    to    cover    this.     The 
State  of  South  Carolina  established  a  mo- 
76 


ENGLISH   LIBERTY 

nopoly  in  the  liquor-selling  business  and  at- 
tempted to  carry  on  that  trade  itself.  This, 
of  course,  was  state  socialism  applied  to  the 
selling  of  intoxicating  liquors.  The  United 
States  attempted  to  impose  internal  revenue 
taxes  on  the  State,  as  it  would  upon  any  other 
manufacturer  or  dealer  in  liquors.  The 
State  resisted  payment  on  the  ground  that 
it  was  a  sovereign  State,  hence  could  not  be 
taxed,  and  the  case  went  to  the  Supreme 
Court.  There  was  a  great  deal  of  argu- 
ment on  the  question  whether  a  State,  as 
such,  had  the  right  to  engage  in  any  gainful 
business,  but  the  case  was  decided  upon 
other  grounds.  And  in  Massachusetts  and 
several  other  States  the  carrying  on  by  the 
State  or  by  cities  or  towns  of  gainful  trades 
or  avocations  necessarily  competing  with 
the  industry  of  private  individuals  has  been 
declared  unlawful  and  the  laws  permitting 
such,  unconstitutional.  You  will  remember 
the  case  in  this  State  was  that  of  Municipal 
Coal  Yards,  that  is,  having  the  city  engage 
in  the  coal  business,  but  there  have  been  in 
other  States  several  other  examples.  So  we 
conclude  that  the  right  to  trade  is  not  only 
protected,  but  it  is  unlimited.     There  can 


THE  AMERICAN  CONSTITUTION 

be  no  combination  made  against  it,  nor  any 
privilege  granted,  even  by  the  Government, 
which  shall  interfere  with  it;  and  the  right 
to  trade,  as  well  as  the  right  to  labor, 
necessarily  involves  the  right  to  make  con- 
tracts concerning  the  same — which  we  call 
the  right  to  freedom  of  contract. 

There  is  another  cardinal  liberty  right 
which  bulks  very  largely  in  the  popular 
mind  to-day,  but  cannot  be  traced,  at  least 
as  now  understood,  to  any  very  early  ex- 
pression in  England — that  is  the  right  to 
equality.  The  notion  of  equality  was,  as 
you  know,  very  strong  at  the  time  of  our 
Revolution,  and  still  more  strong  in  the 
French  Revolution;  and  Tocqueville  and 
others  have  often  pointed  out  that  in  an  ex- 
treme democracy  it  is  apt  to  be  valued  more 
than  even  the  right  to  liberty  itself.  In 
other  words,  democracies,  and  legislatures 
representing  them,  will  sacrifice  individual 
rights,  and  impose  very  tyrannous  laws, 
in  the  aim  of  securing  a  fancied  equality. 
But  the  very  word  equality  appears  for 
the  first  time  in  the  Declaration  of  Inde- 
pendence, which  only  says  that  "All  men 
are   created   equal."      Equality  before   the 

78 


ENGLISH  LIBERTY 

law — not  equality  of  position  and  condition 
— was,  indeed,  an  English  principle  almost 
as  old  as  any  that  we  have.  In  the  earliest 
times  of  which  we  have  any  glimpse,  in  the 
times  written  about  by  Tacitus,  the  Teu- 
tonic people  were  divided  into  three  classes 
— nobles,  freemen  and  laborers  attached  to 
the  soil — but  they  were  probably  always 
treated  equally  before  the  law,  except,  in- 
deed, that,  as  I  have  told  you,  the  fine  paid 
for  the  murder  of  a  man  varied  according 
to  which  of  these  three  classes  he  belonged 
to,  and  in  the  same  manner  when  they  tried 
people  by  their  oaths  (compurgation,  as  it 
was  called)  the  oath  or  testimony  of  a  noble 
was  worth  ten  times  as  much  as  that  of  a 
simple  freeman,  and  so  on:  but  even  this 
inequality  disappeared  very  soon  after  the 
Conquest,  so  that  as  early  as  the  reign  of 
Henry  II  the  express  principle  is  laid  down 
in  the  most  forcible  manner  in  one  of 
his  great  charters,  that  all  Englishmen  are 
free  and  shall  be  treated  equal  before  the 
law.  Another  right  of  equality  results  from 
this  very  right  to  labor — to  acquire  property 
unmolested — that  we  have  been  discussing; 
that   is   what   the   President   so  well   calls 

79 


THE  AMERICAN  CONSTITUTION 

"Equality  of  opportunity";  the  equal  right 
of  any  man  to  engage  in  any  trade  or  busi- 
ness with  as  good  a  chance  as  anybody  else 
and  be  protected  from  any  confederation, 
any  combination  in  restraint  of  trade,  any 
trust,  or  any  special  privilege  granted  by  the 
State  or  by  the  Nation.  On  this  principle, 
also,  all  public  service  must  be  open  to  all 
men  equally  without  distinction  of  rank  or 
station,  and  all  schools  or  other  public  in- 
stitutions be  open  to  everybody  in  the  same 
way,  or  at  least  equal  privileges  provided. 

Finally  we  come  to  the  right  of  property. 
This  is  almost  as  old  as  the  right  to  personal 
liberty.  In  fact,  it  may  almost  be  said  to 
result  from  it,  as  it  certainly  results  from 
the  right  to  labor.  There  is  no  recorded 
history  of  a  time  when  the  Teutonic  (later 
the  Anglo-Saxon)  people  did  not  recognize 
this  right  to  property  quite  as  firmly  as  we 
do  to-day.  The  only  difference  was,  that 
in  very  early  times  some  of  the  land  was 
held  in  common;  not  all,  but  some.  Property 
in  land  seems  to  have  preceded  property 
in  what  we  call  "Personal  property";  this 
merely  for  the  reason  that  at  first  there  was 
very   little   of  the   latter.     A   man   always 

80 


ENGLISH  LIBERTY 

owned  his  spear,  his  clothing  and  personal 
belongings.  His  house  or  hut,  of  course, 
was  on  his  land.  Other  than  this,  the 
earliest  personal  property  was  cattle  and 
domestic  animals;  and  there  is  no  record  of 
a  time  when  these  might  not  be  owned  in 
private  ownership.  Our  word  "chattels" 
is  doubtless  a  corruption  of  the  other  word 
cattle,  for  this  was  the  earliest  subject  of 
property.  There  are  express  statutes,  how- 
ever, recognizing  personal  property  long 
before  Magna  Charta;  and  that  great  docu- 
ment recognizes  the  right  of  property,  both 
real  and  personal,  in  many  clauses.  It 
was  not  necessary  to  define  the  right  to 
property  in  abstract  terms.  But  even  this 
is  done  in  most  of  our  modern  constitutional 
documents,  notably  the  Virginia  Bill  of 
Rights  of  1776,  and  in  the  Federal  and  State 
Constitutions. 

The  right  to  property  needs  very  little  defi- 
nition. It  is,  of  course,  inconsistent  with 
any  scheme  of  socialism  or  of  communism. 
These,  by  the  way,  are  not  the  same 
thing,  though  often  confounded.  Com- 
munism merely  means  that  the  institution 
of  private  property  shall  not  be  recognized, 

81 


THE  AMERICAN  CONSTITUTION 

but  everything  shall  be  owned  by  the  State. 
Socialism  goes  much  farther  than  this,  and 
says  that  the  State  shall  also  control  the 
actions,  or  the  means  of  livelihood,  of  the 
individual.  In  other  words,  communism  is 
merely  aimed  at  the  property  right;  social- 
ism is  aimed  at  the  broader  liberty  right. 

The  individual,  in  England  and  America, 
therefore,  has  an  absolute  right  to  property, 
either  the  profits  of  his  labor  (the  only  kind 
recognized  in  the  Oklahoma  Constitution), 
or  to  property  lawfully  acquired  in  any 
other  manner  (in  the  Constitutions  of  all 
other  States  and  of  the  Nation).  And  hav- 
ing the  right  to  property,  he  has  the  right 
to  make  any  contract,  with  whomsoever  he 
choose,  concerning  it;  either  for  the  use  of 
the  same,  or  in  order  to  acquire  new  prop- 
erty. This,  again,  we  call  the  right  to 
freedom  of  contract;  but  while  the  right 
itself  is  clear  enough,  the  methods  in  which 
it  has  been  enforced  and  the  methods  in 
which  it  has  been  interfered  with  deserve 
some  study. 

The  three  great  principles  in  the  English 
Constitution  which  concern  property  in  its 
relation  to  the  government   are,  first,  that 

82 


ENGLISH  LIBERTY 

Englishmen  cannot  be  taxed  without  their 
consent  as  expressed  in  their  legislature.     In 
other  words,  the  King  can  impose  no  tax 
except  under  a  law  passed  by  Parliament. 
The  second,  that  the  object  of  all  levies,  the 
end  for  which  all  moneys  are  raised  by  law, 
must  be  the  general  good  of  the  people,  that 
is,  the  good  of  the  people,  not  of  any  one 
person,  even  the  King,  nor  of  any  particular 
class,  such  as  the  nobles  or  the  merchants. 
The  third,  also  expressed  in  Magna  Charta, 
is  that  no  man's  property  shall  be  taken 
away  or  damaged,  even  for  public  uses,  for 
the  use  of  the  State,  without  full  compensa- 
tion; and  we  have  added  to  this  principle 
that  the  compensation  must  be  paid  before 
the  taking,  and  the  amount  determined  by  a 
jury.     The  first  two  principles  were  so  dis- 
tasteful to  the  Norman   Kings  that,  while 
clear  in  the  charter  of  John,  they  were  care- 
fully dropped  out  a  few  years  later  from 
the  charter  of  Henry  III,  and  it  took  a  cen- 
tury or  so  to  get  them  back — in  the  Confir- 
mation of  Charters  of  Edward  I.     This  prin- 
ciple, that  money  can  be  only  taken  from  a 
manunderanylawbytheStateorbyanycrea- 
ture  of  the  State,  with  his  own  consent  as  ex- 

83 


THE  AMERICAN  CONSTITUTION 

pressed  by  a  legislative  body  in  which  he  is 
represented;  and  the  other  principle,  that 
all  the  revenues  of  the  government  must  be 
collected  for  the  good  of  everybody  and  not 
for  any  particular  class,  have  been  of  im- 
mense importance  in  our  history.  They, 
in  large  part,  brought  on  both  the  English 
and  the  American  Revolution,  and  have  by 
no  means  ceased  to  be  important  to-day. 
And  our  Constitution  goes  a  step  beyond 
the  English  in  that  it  effectually  denies  to 
the  Central  Government  any  direct  taxation 
at  all. 

The  last  of  our  natural  rights  is  the  right 
of  conscience;  the  right  to  the  free  exercise 
of  one's  own  religion,  the  right  not  to  be 
compelled  to  adopt  any  religion,  or  to  pay 
taxes  for  any  church;  and  the  right  not  to  be 
deprived  of  any  privilege  or  any  office  on 
account  of  one's  religious  sentiments.  I 
need  say  no  more  of  this.  As  you  know, 
it  is  the  very  principle  which  brought  about 
the  settlement  of  our  country;  and  although, 
at  first,  our  Puritan  ancestors  endeavored  to 
enforce  their  own  religion  or  their  own  sec- 
tarian belief  on  others,  that  effort  was  soon 
given  up,  and  the  denial  of  any  such  attempt 

84 


ENGLISH  LIBERTY 

forms  one  of  the  corner-stones  of  the  Decla- 
ration of  Independence  and  the  Federal 
Constitution.  This  last  right,  you  probably 
know,  has  never  even  yet  been  declared  a 
constitutional  right  in  England,  though  the 
political  tendency  for  the  last  two  centuries 
has  been  towards  general  religious  freedom. 
The  established  church,  however,  still  re- 
mains. 

Now,  in  closing  our  discussion  of  these 
cardinal  rights,  the  right  to  law,  personal 
liberty,  trade  and  labor,  equality,  property, 
religion,  and,  we  might  add,  local  self-gov- 
ernment— I  must  accentuate  the  fact  that 
one  great  principle  is  common  to  all  of  them. 
Whereas  other  rights  given  to  or  retained 
by  the  people  under  our  system  are  matters 
which  may  be  altered  at  the  will  of  the  ma- 
jority, matters  which  cannot  be  enforced 
to  their  full  extent  by  one  individual — 
certainly  not  by  one  individual  as  against 
the  Government — everyone  of  these  cardinal 
rights  can  be  enforced  just  as  much  by  the 
individual  against  a  majority  or  even  against 
the  Government  as  against  any  other  one 
fellow-citizen.  Under  our  theory  nothing 
can  change  or  take  away  from  an  English 

85 


THE  AMERICAN  CONSTITUTION 

freeman  any  of  these  cardinal  rights.  Vir- 
ginia and  other  State  Constitutions  say  that 
these  rights  are  inahenable  and  that  govern- 
ment itself  is  instituted  to  secure  them. 
They  cannot  be  supposed  to  be  surrendered 
by  the  people  when  they  came  into  this  or 
any  government,  because  no  equivalent  can 
be  given  for  them. 

But,  besides  these  natural  rights,  there  are 
other  constitutional  rights  of  English  free- 
men, many  of  which  are  quite  as  old,  which 
only  differ  from  the  natural  rights  in  that 
they  are  rather  political,  military,  or  legal, 
than  essential  attributes  of  human  liberty. 
I  have  no  desire  to  tire  you  with  a  full  cata- 
logue; but  some  of  them  are  too  important 
to  omit.  First  is  freedom  of  speech  and 
freedom  of  the  press,  which  I  need  not  dwell 
upon;  and  (perhaps  as  a  consequence  of  this) 
the  great  political  right  of  the  people  to  as- 
semble and  consult  together;  and  to  petition 
the  Government  for  redress  of  grievances. 
Now  this  is  a  right  of  immense  importance; 
and  this  also  does  not  exist  in  Continental 
countries.  Only  last  week  in  this  very  hall 
Abbe  Klein  was  complaining  that  it  was 
almost  impossible  for  his  party  to  make 

86 


ENGLISH  LIBERTY 

effective  opposition  to  the  radicals  because 
this  right  did  not  exist  in  France;  and  we 
remember  the  recent  executions  of  thousands 
of  Russian  subjects  for  presuming  to  exer- 
cise this  right.  And  even  in  our  own  coun- 
try the  Chief  Magistrate  has  recently  quali- 
fied with  the  term  of  conspiracy  an  alleged 
combination  of  citizens  to  oppose  or  pre- 
vent the  nomination  of  a  certain  man  to 
succeed  him.  A  conspiracy  is  a  criminal 
or  unlawful  combination.  A  combination 
of  English  or  American  citizens  to  nominate 
a  certain  man  for  office — or  even  to  oppose 
the  nomination  of  a  certain  man — is  not  a 
conspiracy,  but  the  exercise  of  a  sacred 
political  right.  Cromwell,  in  his  later  des- 
potic years,  termed  it  a  conspiracy;  so  Napo- 
leon III,  who  dispersed  such  assemblies  at 
the  point  of  the  bayonet,  and  the  Czar,  who 
breaks  up  such  combinations  by  imprison- 
ment or  execution.  But  it  is  one  of  our 
dearest  liberties. 

The  right  to  bear  arms  is  another  cardinal 
right  of  English  freemen,  dating  back  to  the 
days  when  every  man  might  execute  the 
law  for  himself,  reaffirmed  in  later  days  as 
against  a  tyrannical  government,  while  to 

87 


THE  AMERICAN  CONSTITUTION 

the  Government,  the  employment  of  mer- 
cenaries— later,  standing  armies — is  always 
forbidden.  Standing  armies  were  always 
intolerable  to  the  English  people.  Even 
now,  in  England,  the  maintenance  of  the 
British  army  depends  on  the  annual  vote 
of  the  House  of  Commons;  so  with  us  it 
must  be  voted  once  in  two  years,  or  by  every 
Congress.  Yet  we  have  recently  heard  from 
one  of  our  generals  that  our  imperial  career 
may  make  conscription  necessary — a  thing 
never  yet  tolerated  in  England.  Several 
States  have  Constitutions  forbidding  the  em- 
ployment of  private  companies  of  guards 
or  the  importation  of  "  Pinkerton  men,"  so- 
called,  in  times  of  strike  or  trouble.  This  is 
said  to  have  been  one  of  the  objections  of 
the  President  to  the  Oklahoma  Constitution; 
but  it  exists  in  such  conservative  States  as 
Kentucky.  So,  the  early  statute  books  in 
England  are  full  of  laws  against  "private  re- 
tainers." 

Of  trial  by  jury,  I  need  say  no  word.  It 
comes  under  the  right  to  law,  but  is  sepa- 
rately and  expressly  mentioned  in  Magna 
Charta.  Congress  is  at  present  withhold- 
ing it  from  ten  millions  of  our  people  in  the 

88 


ENGLISH   LIBERTY 

East. — The  right  to  serve  on  juries  is  of 
equal  importance.  The  negroes  allege  that 
they  are  being  denied  it  in  the  South. — 
The  right  to  habeas  corpus  comes  under  the 
right  to  liberty;  that  also  is  being  withheld 
in  the  Philippine  Islands. — Since  Magna 
Charta,  no  man  can  be  tried  for  crime  un- 
less a  grand  jury  of  twenty-three  men  find 
probable  cause.  This  is  done  away  with 
in  all  our  insular  possessions. — Under 
Charles  I  our  ancestors  established  that 
treason  should  consist  only  of  levying  war 
against  the  state  or  adhering  to  its  enemies 
and  giving  them  aid  and  comfort,  and  be 
evidenced  by  some  overt  act  to  which  there 
are  two  witnesses.  It  was  under  this  right 
that  even  Aaron  Burr  was  acquitted  by  his 
political  enemy,  John  Marshall.  Yet  it 
has  recently  been  asserted  that  the  mailing 
of  political  arguments  to  American  citizens 
might  be  such  an  overt  act;  and  freedom  of 
the  press  is  forbidden  in  the  Philippines. — 
The  English  Bill  of  Rights  forbids  pardon- 
ing a  crime  before  trial.  Newspapers  have 
said  that  it  was  recently  promised  by  our 
Attorney-General  to  the  officials  of  a  certain 
railroad. — The  English  people  fought  five  cen- 

89 


THE  AMERICAN  CONSTITUTION 

turies  to  make  the  judiciary  independent  of 
the  Crown,  until  they  finally  established  that 
all  judges  should  hold  office  during  good 
behavior,  for  fixed  salaries  not  alterable  by 
the  King,  and  removable  only  on  joint  address 
of  the  legislature.  But  a  democratic  Sen- 
ator has  recently  introduced  a  bill  to  make 
our  judges  removable  by  the  President;  and 
the  members  of  the  Interstate  Commerce 
Commission,  with  more  power  than  most 
judges,  are  removable  at  the  will  of  the  Presi- 
dent.— I  have  mentioned  but  a  few  of  these 
political  rights,  with  the  briefest  statement 
of  their  reason;  but  I  hope  enough  to  show 
their  importance.  And  every  one  of  these 
we  have  shown  a  recent  tendency  to  forget. 
Now  are  there  any  other  natural  rights, 
besides  these  cardinal  rights  we  are  discuss- 
ing, which  every  individual  must  have  ? 
Kentucky  and  Wyoming  declare  that  abso- 
lute arbitrary  power  over  the  lives,  liberty 
and  property  of  freemen  exists  nowhere  in 
a  republic,  not  even  in  the  largest  majority, 
and  the  Constitutions  of  most  States  make 
the  famous  statement  which,  after  having  ap- 
peared in  the  Constitutions  of  Massachusetts, 
New  Hampshire,  Virginia  and  North  Caro- 

90 


ENGLISH  LIBERTY 

lina,  was  adopted  in  the  Federal  Constitu- 
tion in  the  Ninth  Amendment,  as  the  people 
at  the  time  insisted,  or  the  Constitution  as  a 
whole  would  not  have  been  adopted:  "This 
enumeration  of  rights  shall  not  be  construed 
to  impair  or  deny  others  retained  by  the 
people."  Even  if  the  word  liberty  were  not 
large  enough  to  cover  almost  any  possible 
infringement,  it  would  probably  be  held, 
should  our  people  or  the  people  of  any  State 
have  to  face  a  course  of  oppression  by  any 
form  of  government,  that  these  words  were 
broad  enough  to  cover  any  right  not  ex- 
pressly and  in  terms  taken  from  the  people 
and  given  in  the  Constitution  itself  to  the 
Government  it  created.  For  our  Govern- 
ment exists  only  in  and  by  the  Constitution; 
if  the  Constitution  falls,  our  Government 
itself  falls  with  it.  So  Hooker  in  his 
''Ecclesiastical  Polity" — ''What  power  the 
King  hath,  he  hath  it  but  by  law." 


91 


IV 


GROWTH  OF  THESE  RIGHTS;  THEIR 
INFRINGEMENT  BY  KINGS  AND  THEIR 
REESTABLISHMENT  BY  THE  PEOPLE 

WE  have  now  briefly  sketched  the  more 
important  of  the  constitutional  rights 
which  appertain  to  the  people  at  large,  as 
distinct  from  those  that  merely  have  to  do 
with  the  frame  of  government.  Before 
coming  to  their  adoption  in  our  American 
Constitution,  it  would  be  well  to  consider 
what  attacks  were  made  upon  them  by  the 
King  or  by  other  branches  of  the  government 
in  the  years  preceding  that  final  attack  by 
George  III,  which  caused  the  thirteen 
colonies  to  revolt.  Each  attack  led  to  a 
reaffirmation — always  in  a  stronger  and 
clearer  form — so  that,  in  pursuing  this  in- 
quiry, we  shall  find  the  exact  shape  in  which 
our  ancestors  understood  them  in  1787,  when 
they  drew  up  the  Federal  Constitution,  or  in 

92 


GROWTH  AND  INFRINGEMENT  OF  RIGHTS 

1780,  when  they  drew  up  the  constitutions 
of  Virginia  and  Massachusetts. 

It  will  be  important  in  the  first  instance 
to  notice  by  which  arm  of  government  the 
attack  was  made  and  by  what  method  of 
approach.  From  the  Norman  Conquest 
until  the  accession  of  Queen  Victoria  attacks 
upon  the  British  Constitution  were  always 
made  by  the  King  or  by  the  Executive,  by 
John,  Henry  VIII,  James  I,  Charles  I,  by 
Oliver  Cromwell,  in  his  later  days, — never  by 
the  Parliament,  who  were  the  representatives 
of  the  people;  except,  perhaps,  when  the 
Long  Parliament  lost  its  head  under  the  later 
years  of  Charles  I,  and  in  the  earlier  years 
of  the  Commonwealth,  before  Cromwell 
did  away  with  representative  government 
at  the  point  of  the  sword.  The  judicial 
branch,  not  in  fact  being  a  coordinate 
branch  in  England  but  merely  the  creature 
of  the  other  two,  and  being  possessed  of  no 
power  to  set  aside  laws,  naturally  made  no 
such  attack.  Their  only  action,  on  the 
contrary,  was  to  stand  up  for  the  Consti- 
tution against  the  King;  this  they  steadfastly 
and  bravely  did  for  many  centuries. 

The  method  of  approach  to  undermine 

93 


THE  AMERICAN  CONSTITUTION 

the  Constitution  was  mainly  the  King's  inter- 
ference with  other  than  executive  duties, 
that  is  to  say,  with  the  Parhament  or  with 
the  courts — trying  to  make  the  laws,  or 
trying  to  judge  them.  There  being  no 
precise  doctrine  of  the  separation  of  powers 
in  the  English  Constitution,  it  was  easy  for 
him  to  do  this;  and  it  was  the  very  experi- 
ence of  this  for  many  centuries  which  gave 
our  fathers  the  wisdom  to  base  our  own 
Constitution  on  this  cardinal  principle. 

The  first  attack,  which  began  almost  with 
William  the  Conqueror,  was,  of  course,  the 
attempt  I  have  discussed  so  often  of  the 
Norman  kings  to  persuade  the  people  that 
they  made  the  law  and  not  the  people  them- 
selves. This  was  so  continuous  until  down 
to  the  time  of  Henry  VI  that  I  need  give  no 
particular  instance.  *'  Even  William  theo- 
retically continued  to  govern  as  a  constitu- 
tional king,  the  lawful  successor  of  Edward, 
and  in  that  character  obliged  to  respect  the 
laws  and  customs  of  the  kingdom."  But 
practically  he  governed  in  defiance  of  every- 
thing but  his  own  wishes.  ''The  Govern- 
ment was  centralized,"  says  Taswell-Lang- 
mead,  ''Local  self-government  was   for  a 

94 


GROWTH  AND  INFRINGEMENT  OF  RIGHTS 

time  depressed."  Nevertheless,  he  was 
careful  to  observe  the  forms  of  a  King  of 
the  EngHsh,  and  in  the  fourth  year  of  his 
reign  **  renewed  the  laws  of  Edward  the 
Confessor — with  certain  additions  made  by 
himself  for  the  advantage  of  the  people  of 
England."  He  held  three  times  a  year,  at 
the  accustomed  times  and  places,  the  ancient 
national  assembly. 

That  the  people  were  re-asserting  them- 
selves is,  perhaps,  best  shown  in  that  Henry  I 
on  his  accession,  only  thirty-four  years  after 
the  Conquest,  found  it  necessary  to  issue  a 
charter  of  liberties;  and  this  was  renewed 
by  Stephen  and  by  Henry  H,  though  neither 
King  observed  it  when  firmly  seated  on  the 
throne.  Under  John,  it  served  in  the  hands 
of  Stephen  Langton  as  the  text  upon  which 
the  barons  founded  their  claim  for  a  restora- 
tion of  the  ancient  liberties  of  the  nation. 
Our  authorities  give  two  great  constitutional 
results  of  Henry's  reign,  both  showing  the 
restoration  of  popular  rights;  first,  the  main- 
tenance of  the  local  supremacy  of  the  State 
over  the  Church  of  Rome;  second,  the 
restoration  of  Saxon  law  liberties  by  the 
abolition  of  the  Norman  method  of  trial  by 

95 


THE  AMERICAN  CONSTITUTION 

battle,  and  the  restoration,  in  an  improved 
form,  of  both  the  grand  jury,  as  the  only 
body  competent  lawfully  to  charge  a  man 
with  crime,  and  the  petit  jury,  by  which 
alone  the  crime  was  to  be  tried.  Star 
Chambers,  Courts  of  Chancery,  Attainders, 
Informations,  were  all  devices  contrived 
by  the  successive  kings  to  get  rid  of  the  two 
juries.  Guizot,  the  French  historian,  tells 
us  "that  juries  alone  kept  alive  the  germ 
of  free  institutions  at  the  time  when  the 
predominant  influence  of  the  king  in  the 
judicial  order  produced  this  centralization." 
The  kings,  however,  at  that  time,  rather 
devoted  their  energies  to  the  invention  of 
ways  to  raise  money  by  excessive  taxation 
without  respecting  the  ancient  constitutional 
principle  that  taxes  could  only  be  imposed 
by  the  common  consent  of  the  realm  and 
for  the  benefit  of  the  people  as  a  whole. 
This,  curiously  enough,  was  the  first,  as  it 
was  the  last,  effort  of  the  English  kings  to 
undermine  the  liberties  of  the  people.  Tax- 
ation without  legislative  consent  was  the 
great  object  of  the  Norman  kings,  just  as 
taxation  without  representation  was  the 
purpose  of  the  last  English  king  who  seri- 

96 


DEVELOPMENT  OF  THESE  RIGHTS 

ously  endeavored    to    do    away  with    con- 
stitutional principles. 

When  we  come  to  John,  the  legal  chron- 
iclers complain  that  he  set  at  defiance  all 
laws.     The  people  were  compelled  to  make 
a    stand,    not   so   much   for   constitutional 
government  as  for  personal  liberty.     Tyr- 
anny always  provokes  democracy,  and  the 
assembly  at  St.  Albans  called  together  to 
oppose  John's  pretensions,  is  the  first  his- 
torical instance  of  the  summons  of  repre- 
sentatives of  the  common  people  to  a  na- 
tional   council    of  England.     One    of    the 
things  they  complained  of  was  the  King's 
Court,  which,  during  the  Norman  reigns, 
had  drawn  to  itself  the  whole  central  ad- 
ministration of  justice;  not  only  did  it  hear 
all  cases  on  appeal,  but,  by  virtue  of  special 
writs  or  as  a  special  favor,  the  King  would 
call  up  cases  from  the  local  courts  to  be 
heard  in  his  own  courts  according  to  such 
new  methods  as  his  advisers  might  invent. 
This  court  followed  the  person  of  the  King 
wherever  he  went.     It  resulted   in   a   per- 
fect centralization  of  justice,  but  probably 
little  greater  in  civil  causes  than  would  be 
the  case  if  all  our  corporations  did  business 

97 


THE  AMERICAN  CONSTITUTION 

under  a  Federal  charter.  Hannis  Taylor 
says:  *'As  soon  as  the  principle  was  firmly 
established  that  the  king  was  the  fountain 
of  justice  and  that  all  courts  were  the  king's 
courts,  there  was  nothing  to  prevent  the 
king  from  invading  any  jurisdiction  and 
withdrawing  from  it  any  cause  whatsoever." 
And  that  same  dispute  we  have  now  once 
more,  as  a  consequence  of  the  Railroad 
Rate  Regulation  Act,  and  the  trust  laws, 
between  our  States  and  the  Federal  power. 
The  result  of  all  this,  in  England,  was  two 
articles  in  Magna  Charta:  *' Common  pleas 
shall  not  follow  the  King's  Court,  but  be 
held  in  some  certain  place";  and  again  no 
royal  writ  was  in  future  to  be  issued  so  as  to 
cause  a  free  man  to  lose  the  right  to  trial 
in  his  local  court.  Another  article  is  not- 
able, for  it  says  that  "justices  shall  only  be 
appointed  of  such  as  know  the  law  and  mean 
duly  to  observe  it."  And,  finally,  the  liber- 
ties of  the  charter  were  extended  to  **all 
men  in  our  kingdom"  without  distinction 
of  rank  or  station. 

Immediately  after  being  compelled  to 
grant  the  Great  Charter,  John  applied  for 
aid  to  the  Pope,  who  declared  it  void;  but 

98 


DEVELOPMENT  OF  THESE  RIGHTS 

John  soon  died,  and  Henry  III  confirmed  it. 
But  he  omitted  from  his  re-issue  of  the 
Charter  the  great  clauses  forbidding  tax- 
ation without  the  consent  of  the  people  as 
expressed  in  Parhament,  and  also  the  quali- 
fication that  judges  should  be  learned  in 
the  law;  and  this  was  the  next  notable  at- 
tack on  the  people's  liberties.  The  lost 
clauses  were  only  restored  in  the  Confirma- 
tion of  Charters  granted  by  Edward  I  in 
1 297 .  Magna  Charta  was  confirmed  thirty- 
seven  times  by  seven  successive  kings,  end- 
ing with  Henry  VI,  not  to  mention  the  great 
confirmation  forced  upon  Charles  I  in  the 
Petition  of  Rights  and  again  granted  by 
William  of  Orange  in  the  Bill  of  Rights. 

The  third  attack  of  the  Norman  kings 
was  upon  the  judiciary.  Henry  II  insisted 
on  sitting  in  court  and  dispensing  justice; 
and  this  was  done  by  all  the  kings  down  to 
Edward  II.  Edward  IV,  we  are  told,  sat 
in  the  King's  Bench  for  three  consecutive 
days  in  order  to  see  how  his  laws  were  exe- 
cuted, but  it  is  not  said  that  he  interfered 
in  the  proceedings.  Finally,  when  James  I 
sat  personally  in  court  and  wished  to  in- 
terfere, he  was  told  by  the  judges  that  he 

99 


THE  AMERICAN  CONSTITUTION 

could  not  deliver  an  opinion.  This  ended 
the  interference  of  the  Executive  until  the 
final  great  battle  between  the  King  and  the 
Chief  Justice  in  1615,  of  which  later. 

During  this  earlier  time  the  people  were 
mainly  occupied  in  winning  back  their  local 
courts,  their  right  to  lawmaking,  and  the 
institution  of  the  grand  and  petit  jury. 
Even  when  the  king  allowed  his  judges  to 
go  on  circuit,  they  were  employed  as  his 
agents  for  squeezing  money  out  of  the  peo- 
ple, of  which,  under  Henry  III,  the  baron- 
age complained.  When,  too,  the  jury  was 
finally  established,  the  king  got  back  at  the 
people  by  inventing  a  method  of  attaint, 
that  is,  punishing  the  jury  for  a  false  verdict. 
This  was  frequently  employed  by  the  Tudor 
and  Stuart  kings.  One  of  the  most  inter- 
esting cases  happened  as  late  as  Charles  II. 
William  Penn,  the  famous  Quaker,  was 
prosecuted  for  having  preached  to  a  large 
assembly  in  Grace  Church  Street.  The  jury 
acquitted  him  and  were  accordingly  fined 
twenty-six  pounds  apiece,  quite  as  much  as 
a  thousand  dollars  of  our  money,  and  the 
foreman  was  committed  to  prison  for  re- 
fusing to  pay.  He  sued  out  his  writ  of 
100 


DEVELOPMENT  OF  THESE   RIGHTS 

habeas  corpus.  The  defense  was  that  he 
had  been  punished  for  finding  a  verdict 
against  the  evidence  and  the  direction  of  the 
court.  Chief  Justice  Vaughan  held  the 
ground  to  be  insufficient  and  discharged  the 
prisoner — so  this  was  the  end  of  the  attempt 
of  the  King  to  interfere  with  juries,  after 
he  had  failed  to  Hmit  the  people  to  his  own 
courts. 

His  next  attempt  I  anticipated  in  an 
earlier  lecture.  The  King's  great  officer, 
the  Chancellor,  unconstitutionally  assumed 
jurisdiction  in  common-law  cases.  Men 
were  arbitrarily  imprisoned  on  injunction 
process  without  indictment,  and  their  land 
seized  into  the  King's  hands.  A  series  of 
statutes  were  passed  restraining  this  illegal 
invasion  upon  the  rights  of  property  and 
personal  liberty.  The  statutes  proving  in- 
sufficient, they  filed  repeated  petitions  to 
the  King,  who  returned  an  unsatisfactory 
answer,  and  it  was  not  until  1352  that  they 
obtained  the  enactment  of  a  statute  which, 
expounding  the  words  of  Magna  Charta, 
explicitly  declares  that  "whereas  it  states 
that  none  should  be  imprisoned  unless  by 
the  law  of  the  land,  it  is  now  established  that 

lOI 


THE  AMERICAN  CONSTITUTION 

from  henceforth  none  shall  be  taken  by 
petition  or  suggestion  made  to  the  King 
unless  by  indictment  of  good  and  lawful 
people  of  the  neighborhood."  But  in  1389 
they  had  again  to  petition  Richard  II  that 
the  Chancellor  should  make  no  ordinance 
against  the  common  law,  to  which  the  King 
returned  the  unsatisfactory  answer,  "Let  it 
be  done  as  has  been  the  custom,  provided 
the  royal  prerogative  he  saved."  Under 
Richard  II,  a  few  years  later,  the  barons 
protested  that  they  would  never  suffer  the 
kingdom  to  be  governed  by  the  Roman  law, 
and  the  judges  prohibited  it  from  being  any 
longer  cited  in  the  common-law  tribunals. 
Yet  under  Henry  VIII  it  is  said  one-third 
of  England  was  deprived  of  the  common 
law.  The  abuse  of  the  Chancery,  particu- 
larly on  its  criminal  side,  went  on;  the  Court 
of  Star  Chamber  continued  until  abolished 
by  Parliament  under  Charles  I.  It  was  then 
identical  with  the  Privy  Council;  so  that 
the  same  body  of  men  exercised  executive 
and  judicial  functions.  This  court  was 
held  competent  to  pronounce  any  sentence 
short  of  death;  and  the  fines  were  frequently 
of  enormous  amounts,  and  in  many  cases 
102 


DEVELOPMENT  OF   THESE   RIGHTS 

proved  ruinous  to  the  sufferers.  So,  by  one 
path  after  another,  but  mainly  by  attacks 
upon  the  judiciary,  the  Tudor  and  the 
Stuart  kings  attempted  to  make  the  royal 
will  the  only  law,  until  the  last  of  the  Stuart 
kings  overthrew  his  dynasty  in  that  attempt. 
Richard  II  worked  mainly  through  a 
corrupt  bench  of  judges  and  a  packed  House 
of  Commons;  his  favorite  method  was  to 
secure  the  opinion  of  the  judges  beforehand 
on  a  question  of  law  in  his  favor,  then  seize 
the  most  obnoxious  members  of  the  opposi- 
tion and  send  them  to  those  judges  for  trial. 
This  also  resulted  in  the  loss  of  his  kingdom 
a  few  years  later.  He  finally  persuaded 
the  Commons  practically  to  abdicate  their 
powers  in  favor  of  a  board  of  eighteen  com- 
missioners. This  scheme  worked  perfectly, 
and  caused  no  Parliament  to  be  called  for 
many  years.  This  committee  of  eighteen 
issued  ordinances  at  the  King's  will,  granted 
taxes,  decreed  treason  against  all  who  dis- 
obeyed them,  and  authorized  the  King  to 
dispense  with  statutes  at  pleasure.  The 
people  stood  this  for  thirteen  years  and 
then  he  was  deposed  by  that  ParHament 
he  had  failed  to  call  together. 
103 


THE  AMERICAN  CONSTITUTION 

Under  the  five  kings  of  York  and  Lan- 
caster the  nation  was  busy  with  civil  or 
foreign  wars.  In  times  of  war  the  Consti- 
tution is  silent.  In  militant  civilization  it 
has  no  part.  Consequently  we  find  little 
growth  at  this  time.  In  nearly  a  hundred 
years  there  are  but  two  things  to  note.  The 
people  succeeded  in  re-establishing  the  in- 
valuable right  of  members  of  Parliament  not 
to  be  questioned  or  punished  for  their  speech 
in  any  other  place.  Freedom  of  speech,  at 
least  in  Parliament,  was  thus  established. 
On  the  other  hand,  the  first  disfranchising 
statute  ever  passed  in  England,  putting  a 
property  qualification  on  the  right  of  suff^rage 
so  that  nobody  could  vote  who  had  not  land 
to  the  value  of  forty  shillings  a  year,  was 
passed  under  Henry  VI.  Up  to  that  time 
they  had  manhood  suffrage  in  England. 
This  change  practically  confined  the  govern- 
ment of  the  country  to  the  larger  land  own- 
ers, for  forty  shillings  a  year  then  was  quite 
forty  pounds  of  our  money,  and  the  people 
have  never  quite  got  back  all  their  early 
freedom  in  this  particular,  even  at  the  pres- 
ent day. 

The  Tudor  period  is  an  age  of  great  ma- 
104 


DEVELOPMENT  OF  THESE  RIGHTS 

terial  prosperity  owing  to  the  discovery  of 
America  and  the  passage  to  the  East  Indies. 
"Intent  upon  the  acquisition  of  private 
gain,"  says  Taswell-Langmead,  "merchants 
were,  for  the  most  part,  satisfied  to  leave 
questions  of  government  to  others,"  much 
as  has  been  the  case  here  in  the  last  ten 
years.  On  the  Continent,  the  introduction 
of  standing  armies  enabled  sovereigns  to 
do  away  with  national  assemblies.  The  free 
constitutions  of  Castile  and  Aragon  were 
successfully  overthrown.  The  States  Gen- 
eral of  France,  after  languishing  for  a  time, 
ceased  altogether  in  1614,  and  were  only 
resuscitated  for  their  final  meeting,  one 
hundred  and  seventy-five  years  later,  on  the 
eve  of  the  great  Revolution.  The  main 
reason  that  Parliamentary  institutions  did 
not  pass  away  also  in  England  was  her 
insular  position,  which,  rendering  her  se- 
cure against  a  foreign  invasion,  made  it  un- 
necessary to  employ  regular  troops.  Ma- 
caulay  tells  us  that  even  as  late  as  Henry 
VIII  there  were  only  two  hundred  paid 
soldiers  in  England;  and  the  great  historian. 
Freeman,  tells  us  that  the  personal  char- 
acter of  Henry  VIII  had  something  to  do 
105 


THE  AMERICAN  CONSTITUTION 

with  this.  Tyrant  as  he  was,  he  was  yet 
animated  by  a  scrupulous  regard  for  the 
letter  of  the  law.  While  his  fellow-tyrants 
abroad  were  everywhere  overthrowing  free 
institutions,  Henry  showed  them  the  deepest 
outward  respect.  He  sheltered  himself  al- 
ways under  the  letter  of  the  law;  otherwise 
his  conscience  seemed  to  be  uneasy.  A 
subservient  Parliament  made  it  possible  to 
do  this  and  still  obtain  all  that  he  wanted. 
When  Henry  had  cut  off  Ann  Boleyn's  head 
on  one  day  and  married  Jane  Seymour 
the  next  morning,  this  Parliament  carefully 
listened  to  a  speech  from  Lord  Chancellor 
Audley,  who  assured  them  that  the  King 
did  not  do  it  "in  any  carnal  concupiscence" 
and  Parliament  immediately  proceeded  to 
pass  an  act  declaring  that  it  was  all  done  "of 
the  King's  most  excellent  goodness."  Dr. 
Freeman  says  we  had  got  into  a  state  of 
things  which  our  fathers  called  "unlaw," 
when  judges  were  ready  to  declare  anything 
to  be  the  law,  juries  ready  to  find  any  verdict, 
and  bishops  ready  to  declare  anything  true 
and  orthodox  at  the  will  of  the  mere  ca- 
pricious despot  on  the  throne.  Therefore, 
there  is  little  formal  attack  on  the  liberties  of 
1 06 


DEVELOPMENT  OF  THESE   RIGHTS 

the  people  under  Henry  Vlll  which  appears 
in  the  statute  book.     All  he  found  it  neces- 
sary to  do  was  to  control  Parliament,  and 
this  he  did  by  interference  with  elections, 
thus  infringing  on  at  least  one  constitutional 
principle,  namely,  that    all    elections  shall 
be  free.     Although  the  power  of  the  Crown 
increased  until  it  acquired  dangerous  pro- 
portions, the  want  of  a  standing  army  acted 
as  a  perpetual   restraint  which,   says  Ma- 
cauley,  ''while  it  did  not  protect  the  indi- 
vidual, secured  the  nation  against  general 
oppression."     Under  Henry  VH,  however, 
the   criminal  jurisdiction  of  the   Court  of 
Star  Chamber  had  been  revived  and  the 
persecution   of  the   Puritans   roused   up   a 
spirit  of  opposition  to  the  Crown  so  that  the 
struggle  for  religious  freedom  led  to  a  fight 
being  waged   for   political   freedom,   while 
Henry  VH's   effort  to  tax  the  people  had 
provoked  armed  opposition — "taxation  be- 
ing the  one  point  which  the  masses  of  the 
people  seem  to  have  considered  worth  fight- 
ing about." 

The  main  attack,  therefore,  under  Henry 
Vni,  is  the  subjugation  of  Parliament;  not 
so  much  the  confusing  of  the  legislative  with 
107 


THE  AMERICAN  CONSTITUTION 

the  executive,  for  Henry  was  nearly  always 
careful  to  act  under  the  forms  of  law,  but 
the  interference  with  elections.and  the  pack- 
ing of  Parliament  in  favor  of  the  King  and 
his  policies.  This  came  to  a  head  under 
Cardinal  Wolsey  in  1523.  Parliament  was 
asked  to  impose  the  then  huge  tax  of  800,000 
pounds,  and  being  reluctant.  Cardinal  Wol- 
sey himself,  with  pomp  and  retinue,  with  all 
his  followers,  his  maces,  his  pillars,  his  pole 
axes,  his  cross,  his  hat,  and  the  great  seal, 
too,  marched  down  personally  to  Parliament 
and  was  admitted.  The  Commons  received 
his  harangue  in  silence,  even  when  Wolsey 
demanded  an  answer;  but  at  last  the  Speaker 
falling  on  his  knees  with  much  reverence, 
excused  the  silence  of  the  House,  "abashed," 
as  he  said,  *'at  the  sight  of  so  noble  a  person- 
age"; but  he  then  proceeded  to  show  the 
Cardinal  that  his  coming  thither  was 
"neither  expedient  nor  agreeable  to  the 
ancient  liberties  of  the  House,  it  being  the 
usage  of  the  Commons  to  debate  only 
amongst  themselves."  As  a  result  of  this 
brave  assertion,  the  King  did  not  summon 
Parliament  again  for  seven  years. 

The   next   attack  was   the   invention  of 
108 


DEVELOPMENT  OF  THESE   RIGHTS 

bills  of  attainder,  of  which  I  spoke  in  the 
first  lecture.  A  bill  of  attainder  is  an  act 
of  Parliament  finding  a  man  guilty,  or  de- 
priving him  of  civil  rights,  without  a  trial  of 
any  sort.  Thomas  Cromwell,  by  the  King's 
express  command,  inquired  of  the  judges 
whether,  if  Parliament  should  condemn  a 
man  to  die  for  treason  without  hearing  him 
in  his  defence,  the  attainder  could  be  dis- 
puted. The  subservient  court  replied  that 
while  it  would  form  a  dangerous  precedent, 
Parliament  was  supreme  and  no  attainder 
could  be  subsequently  questioned  in  a  court 
of  law.  And  by  the  irony  of  fate,  Cromwell 
was  himself  the  first  to  perish  by  such  a  bill. 
But  the  device  of  attainder,  thus  established, 
was  used  both  by  Henry  VIII,  and  later  by 
the  Stuarts,  as  a  convenient  method  of  get- 
ting rid  of  political  adversaries;  and  while 
it  has  never  been  forbidden  in  the  British 
Constitution,  it  inspired  our  ancestors  with 
so  much  horror  that  it  is  with  us  doubly 
forbidden  in  the  Federal  Constitution,  first 
to  the  Federal  Government  and  then  to  the 
States. 

The  next  effort  of  Henry  VIII  to  get  rid 
of  constitutional  liberties,  while  respecting 
109 


THE  AMERICAN  CONSTITUTION 

the  form  of  law,  was  to  secure  an  act  giving 
his  own  proclamations  the  force  of  law. 
This,  of  course,  is  utterly  counter  to  the 
English  Constitution,  as  it  had  been  won 
back  from  Norman  kings  in  the  preceding 
four  hundred  years.  Nevertheless,  the  power 
of  declaring  laws  or  ordinances  by  the  King, 
or  by  the  King  in  Council,  remained  until  the 
time  of  George  III;  and  was  one  of  the  things 
the  Declaration  of  Independence  complained 
of — as  it  did  also  of  the  corresponding  power 
of  the  King  to  suspend  laws  at  his  own  dis- 
cretion. Both  were  complained  of  in  our 
Declaration  of  Independence  and  are  for- 
bidden by  our  own  Constitutions.  The 
President  can  make  no  law  and  he  can  sus- 
pend no  law;  nor  can  he  lawfully  promise 
that  the  law  shall  not  be  enforced. 

Under  Edward  VI  the  law  of  treason 
which  had  been  stretched  very  far  under 
Henry  VII,  was  at  first  brought  back  to 
constitutional  principles,  but  afterwards  re- 
enacted  in  a  worse  form  than  ever;  until 
Parliament  interfered  and  enacted  that  no 
person  should  be  indicted  for  any  treason 
except  on  the  testimony  of  two  lawful  wit- 
nesses who  should  be  brought  face  to  face 
no 


DEVELOPMENT  OF  THESE   RIGHTS 

with  him  at  his  trial.     This  safeguard,  al- 
though shamelessly  evaded  or  disregarded 
under  Elizabeth  and  James  I,  never  dis- 
appeared   from    the    English    Constitution 
and  became  part  of  ours.     Aaron  Burr  was 
saved  by  it.     In  the  short  reign  of  Edward 
VI  also  appears  the  first  clearly  authenti- 
cated instance  o(  torture.     Now,  the  English 
law   does   not   admit  of  torture.     But   the 
final  note  of  the  Tudor  attempt  to  overthrow 
popular    liberty    is    best    expressed    by    a 
German — Gneist.     It  existed  in  an  attempt 
to  govern  by  the  King  in  Council  rather  than 
h{  Parliament  and  courts;  and  so  to  manipu- 
la':e  both  the  courts  and  the  legislature  as 
to  make  them  subservient  to  the  despotic 
pover  of  the  Council,  in  which  the  royal  will 
wa;  omnipotent.     Much  as  if  to-day  both 
Ho\ses  of  Congress  and  the  courts  were  to 
beccme  subservient  either  to  the  President 
or   t)   his    Cabinet,    which    he    controlled. 
Morover,  this  Council — like  our  Interstate 
Commerce    Commission — was    both    legis- 
lative)^  administrative    and    judicial.     And 
among  other   things   it  governed — for   150 
years^he  American  colonies.     Its   power 
rested  pn  an    idea   of   "an  extraordinary 
III 


THE  AMERICAN  CONSTITUTION 

dictatorial  power  residing  in  the  King  which 
in  any  state  crisis  could  thrust  aside  self- 
imposed  barriers,  laws  and  judicial  consti- 
tution and  find  a  remedy  by  extraordinary 
measures,  jurisdiction  and  ordinances." 

Still,   however,  the  Tudor  tyranny  was 
powerless  in  the  presence  of  an  armed  peo- 
ple.    Its  weakness  lay  in  the  absence  of  a 
standing  military  force.     But  in   1549,  as 
a    consequence   of  the    Peasants'    revolt — 
who  revolted  because  of  the  enclosure  o^ 
common  land — Somerset,  the  protector,  mec 
Jack  Cade  at  the  head  of  a  hundred  thoi- 
sand  agricultural  laborers  in  Kent  with  tie 
aid   of  German   and   Italian   mercenari<s, 
regular  soldiers,  now  for  the  first  time  en- 
ployed  by  English  rulers  in  the  coercon 
of  English  subjects. 

We  have  now  (1550)  a  standing  amy. 
The  natural  consequences  follow;  in  coirts- 
martial,  military  law;  billeting  of  solders, 
overawing  the  courts;  and  these  are  theprin- 
cipal  things  complained  of  against  Oarles 
I  in  the  Petition  of  Right.  But  then  were 
other  rights  that  began  to  be  interferd  with 
at  this  time.  The  press,  for  instane,  was 
placed  under  a  strict  censorship,  (rovern- 
112 


DEVELOPMENT  OF  TFIESE  RIGHTS 

ment  interference  with  elections  became  a 
common  practice.  Freedom  of  speech  was 
attacked  in  the  House  of  Commons  by  EHza- 
beth  herself — ^causing  one  Peter  Wentworth, 
a  Cornishman,  to  say  "Sweet  is  the  name  of 
liberty;  but  let  us  take  care  lest,  contenting 
ourselves  with  the  sweetness  of  the  name, 
we  lose  and  forego  the  thing.  Two  things 
do  great  hurt  here,  one  a  rumor  which  run- 
neth about  the  House:  *Take  heed  what  you 
do.  The  Queen's  Majesty  liketh  not  such 
a  matter.  Whosoever  preferreth  it  she  will 
be  offended  with  him.'  The  other  is  a 
message  sometimes  brought  into  the  House, 
either  of  commanding  or  inhibiting. — I 
would  to  God,  Mr.  Speaker,  that  these  two 
were  buried  in  Hell.  The  King  hath  no 
peer  in  the  kingdom;  but  he  ought  to  be 
under  the  law  because  the  law  maketh  him 
a  king."  To  this  Queen  Elizabeth  replied: 
** Privilege  of  speech  is  granted;  but  you 
must  know  what  privilege  ye  have;  not  to 
speak  every  word  what  he  listeth,  or  what 
Cometh  into  his  brain  to  utter;  your  privilege 
is  Ay  or  No"— and  Mr.  Peter  Wentworth 
was  committed  to  the  Tower. 

The  next  attack  was  on  the  liberty  of 
113 


THE  AMERICAN  CONSTITUTION 

trade.  Elizabeth,  unwilling  to  incur  the 
unpopularity  of  a  direct  tax,  sought  to  raise 
money  by  the  granting  of  monopolies,  lavish 
grants  to  her  courtiers  of  patents  to  deal 
exclusively  in  coal,  leather,  salt,  oil,  vinegar, 
starch,  iron,  lead,  yarn,  glass,  and  other 
common  necessaries  of  life.  This  grievance 
was  attacked  in  Parliament  by  a  Mr.  Bell 
who  was  at  once  summoned  before  the 
Queen's  Council  and  returned  to  the  House 
*'with  such  an  amazed  countenance  that  it 
daunted  all  the  rest."  The  abuse  rose  to  a 
greater  height.  So  numerous  were  the  arti- 
cles subject  to  monopoly  that  when  a  list  of 
them  was  read  over  in  1601,  an  indignant 
member  exclaimed  "Is  not  bread  amongst 
them  ?  Nay,  if  no  remedy  is  found  for  this, 
bread  will  be  there  before  the  next  Parlia- 
ment." 

The  populace  openly  cursed  the  monop- 
olies, and  seeing  that  resistance  was  no 
longer  politic  or  even  possible,  Elizabeth, 
with  a  tact  quite  modern,  sent  a  message 
to  the  Commons  promising  that  some  should 
be  presently  repealed,  some  superseded  and 
none  put  in  execution  but  such  as  should 
first  have  a  trial  according  to  the  law,  for 
114 


DEVELOPMENT  OF  THESE  RIGHTS 

the  good  of  the  people— "good  trusts  and 
bad  trusts."  This,  however,  was  not  suf- 
ficient; and  the  great  anti-monopoly  statute 
was  passed  two  years  later.  This  act  has 
passed  into  the  British  Constitution,  and 
although  the  word  "monopoly"  does  not 
appear  in  the  Federal  Constitution  they  are 
forbidden  by  the  Constitutions  of  several  of 
the  States,  and  even  this  is  hardly  necessary, 
for  they  are  contrary  to  the  common  law. 

We  come  now  to  the  House  of  Stuart. 
Their  attack  on  English  liberties  may  be 
summed  up  in  two  phrases.  "Abnormal 
centralization,"  says  our  great  historian, 
Hannis  Taylor,  "abnormal  centralization 
was  the  fault  of  the  House  of  Stuart."  And 
the  English  Taswell-Langmead  adds,  "per- 
sonal government,  'thorough.'"  It  began 
with  the  device  of  interfering  with  the  elec- 
tions. Neglecting  the  old  principle  that 
they  should  be  free,  James  I  took  upon  him- 
self to  specify  the  kind  of  men  who  were  to 
be  elected  to  the  House  of  Commons,  and 
directed  that  all  returns  should  be  sent  to 
his  Court  of  Chancery,  which  should  reject 
such  men  as  did  not  come  up  to  his  standard. 
So  here  the  House  had  another  fight,  for 
115 


THE  AMERICAN  CONSTITUTION 

their  own  right  to  determine  contested  elec- 
tions; and  it  came  to  a  head  in  a  document 
they  drew  up  and  presented  to  the  King, 
modestly  entitled  "A  form  of  Apology  and 
Satisfaction  to  be  delivered  to  his  Majesty." 
This  "form  of  apology"  consisted  in  calling 
attention  to  the  maintenance  by  the  King  of 
private  law  suits,  to  the  monopolies  of  trade 
companies  still  existing,  to  the  assertion  that 
the  Commons  held  their  privileges  of  right 
and  not  of  the  King's  grace;  that  they  were 
the  highest  court  in  the  realm;  that  the  King 
had  no  business  to  meddle  with  the  returns 
of  their  elections  and  other  not  too  apolo- 
getic matters.  This  complaint  the  King  met 
by  allowing  years  to  elapse  without  call- 
ing his  Parliament  together;  and  this  fa- 
miliar abuse  of  the  Stuart  kings  led  to  our 
constitutional  provision  that  Congress  shall 
meet  at  least  once  every  year.  James  re- 
peated the  offence  of  trying  to  make  laws 
himself,  and  proclaiming  certain  acts  to  be 
crimes;  and  endeavored  in  vain  to  get  a 
judgment  from  the  great  Coke  that  this  was 
lawful.  Coke  said,  "The  king  may  make 
a  proclamation  of  the  law  already  existing, 
but  of  no  new  law;  to  put  people  in  fear  of 
ii6 


DEVELOPMENT  OF  THESE  RIGHTS 

his  displeasure,  but  not  to  inflict  any  fine 
or  punishment."  He  attacked  his  enemies 
freely  for  poHtical  hbel  and  in  one  case  the 
royal  officers  searched  a  clergyman's  house 
and  found  a  manuscript  sermon  which  had 
never  been  preached.  It  was  forwarded  to 
the  King's  Council,  and  the  sentiments  ex- 
pressed not  pleasing  them,  the  clergyman 
was  put  to  the  rack  and  tortured  and  then 
indicted  for  treason  on  the  ground  that  the 
manuscript  contained  matters  which  would 
be  seditious  if  published.  And  here  comes 
a  noteworthy  event.  James  directed  his  at- 
torney-general, Bacon,  to  confer  with  the 
judges  of  the  King's  Bench  separately  and 
find  out  whether  they  would  consider  such 
a  thing  treason;  in  short  he  tried  to  ascertain 
and  probably  to  influence,  their  opinions. 
Chief  Justice  Coke  objected  (so  Bacon  re- 
ported to  the  King),  that  ''such  private, 
auricular,  taking  of  opinions  was  not  ac- 
cording to  the  custom  of  the  realm."  The 
other  judges  weakened;  but  Coke  persist- 
ently maintained  that  a  mere  declaration  of 
the  King's  unworthiness  to  govern,  in  a 
written  sermon  which  had  never  been 
preached,  could  not  amount  to  treason. 
117 


THE  AMERICAN  CONSTITUTION 

Nevertheless  the  unfortunate  minister  was 
sentenced  to  death,  but  died  in  jail  before 
he  could  be  executed. 

Now  here  begins  a  most  pertinacious  and 
continued  attempt  made  by  both  James  and 
Charles  I  to  undermine  the  right  of  the  sub- 
ject to  law,  by  intimidating  or  controlling  the 
courts.     It  lasted  over  fifty  years;  and  ended 
with    the    attempt   to    bulldoze    the   great 
Chief  Justice  Coke.     The  King  asserted  his 
right  to  interfere  with  the  opinions  of  the 
judges  in  every  case  in  which  the  rights  of 
the  Crown  were  in  the  slightest  degree  in- 
volved.     This   claim  was  met  by  pertina- 
cious denial.     Finally,  the  King  ordered  the 
twelve  judges  of  the  court  not  to  proceed 
further  in  a  certain  cause  until  they  should 
hear  his  pleasure.     He  complained  that  of 
late  the  courts  of  common  law  had  grown 
so  vast  and  transcendent  as  to  meddle  with 
the  King's  prerogative.    Most  of  the  judges 
fell  upon  their  knees  and  asked  his  pardon, 
but   Coke   reiterated   his   opinion   that  the 
court  should  neither  postpone  or  try  a  case 
upon  the  order  of  a  king.    King  James  then 
asked  a  formal  legal  opinion  of  the  court 
whether,  if  his  Majesty  conceived  a  case  to 
ii8 


DEVELOPMENT  OF  THESE  RIGHTS 

concern  him  either  in  power  or  profit  and 
thereupon  required  to  consult  with  them 
and  that  they  should  stay  proceedings  in  the 
meantime,  they  ought  not  to  stay,  accord- 
ingly. From  Coke  no  other  answer  could 
be  extracted  than,  that  "whenever  such  a 
case  should  come  before  him  he  would  do 
what  was  fitting  for  a  judge  to  do."  Then, 
a  few  weeks  later  he  was  censured  by  the 
King's  Council  and  suspended  from  his 
ofifice,  and  not  long  afterwards  received 
notice  that  he  had  ceased  to  be  Chief 
Justice.  This  was  in  1616.  In  1642  the 
Civil  War  began. 

"The  disgrace  of  Coke,"  says  Gardiner, 
the  historian,  "is  a  great  historical  land- 
mark." The  common-law  judges  now  held 
their  oflfices  at  the  "good  pleasure  of  the 
sovereign."  All  this  happened  in  161 6.  It 
was  not  until  after  the  English  Revolution 
that  the  Act  of  Settlement  declared  that  all 
judges  should  hold  their  office  during  good 
behavior  and  have  neither  their  salaries  nor 
their  places  dependent  on  the  Executive. 
This  ends  the  period  of  transition.  The 
King,  having  acquired  the  legislative  power, 
both  by  packing  his  Parliament  and  by  cre- 
119 


THE  AMERICAN  CONSTITUTION 

ating  a  legislative  body  outside  of  Parlia- 
ment, had  now  grabbed  the  judicial  power 
also,  by  causing  the  judges  to  feel  that  they 
held  their  office  only  during  his  good  pleas- 
ure and  disgracing  those  who  stood  against 
it.     We  are  now  fairly  embarked  on  the 
career  of  personal  government  which  be- 
came the  rallying  cry  of  Charles  I — he  called 
it  "Prerogative."    Both  James  and  Charles, 
and  much  more  indeed  after  them  George 
III,  endeavored  to  carry  out  personal  gov- 
ernment by  doing  without  the  Cabinet  and 
having  a  private  cabinet  of  court  favorites. 
Hannis  Taylor  tells  us  that  in  order  to  make 
the  system  of  governing  without  a  Parlia- 
ment more  responsive  than  ever  to  the  King's 
personal  will,  James  revived  the  detested 
influence  represented  by  court  favorites;  and 
you  will  doubtless  remember  that  this  was 
so  notable  under  George  III  that  our  re- 
bellion was  practically  brought  on  by  the 
government  of  the  Earl  of  Bute,  a  Scotch 
favorite  of  King  George,  who  was  not  only 
not  in  the  Cabinet  but  had  been  turned  out  of 
the  same;  yet  his  influence  prevailed  against 
the  legitimate  cabinet  of  Lord  North,  who 
at  one  time  might  have  placated  the  angry 

120 


DEVELOPMENT  OF  THESE  RIGHTS 

colonies.  "England,"  says  Burke,  "was 
governed  by  an  interior  cabinet — a  secret 
coterie  of  the  King's  friends." 

Finally,  in  1624,  James  endeavored  to  get 
on  without  a  Parliament  entirely.  Charles  I, 
succeeding,  after  one  or  two  abortive  trials  of 
Parliament,  did  the  same  thing.  His  first 
Parliament,  by  the  great  John  Eliot,  at- 
tacked the  administration  of  a  private 
favorite,  the  Duke  of  Buckingham.  Where- 
upon Charles  said  to  the  House,  "I  must  let 
you  know  that  I  will  not  allow  any  of  my 
servants  to  be  questioned  among  you,  much 
less  such  as  are  of  eminent  place  and  near 
to  me";  and  a  few  days  later  the  King  sum- 
moned the  Commons  to  his  presence  and 
told  them  to  "remember  that  parliaments 
are  altogether  in  my  power  for  their  calling, 
sitting,  and  dissolution;  therefore,  as  I  find 
the  fruits  of  them  good  or  evil,  they  are  to  be 
continued  or  not  to  be."  His  last  Parlia- 
ment signalized  its  existence  by  the  ominous 
great  Petition  of  Right.  The  Lords  vainly 
proposed  an  amendment  saving  the  sover- 
eign power  to  his  Majesty,  but  when  the 
petition  came  back,  Sir  Edward  Coke, — 
who  had  bobbed  up  serenely  in  the  House  of 
121 


THE  AMERICAN  CONSTITUTION 

Commoiis — refused.  *'I  know  how  to  add 
'  sovereign '  to  the  King's  person,  but  not  to 
his  power,"  said  he,  "and  we  cannot  'leave' 
to  him  a  *  sovereign '  power  for  we  were  never 
possessed  of  it.  In  my  opinion  it  weakens 
Magna  Charta  and  all  the  statutes,  for  they 
are  absolute  without  any  saving  of  sovereign 
power.  Take  we  heed  what  we  yield  unto. 
Magna  Charta  is  such  a  fellow  that  he  will 
have  no  'sovereign.'"  Charles  I  refused  to 
sign  the  Petition  of  Right  at  first,  returning 
a  long  and  equivocal  answer.  Whereupon 
the  Commons  proceeded  to  impeach  his 
favorite,  Buckingham,  and  then  he  hastily 
signed  the  bill  as  requested. 

The  principal  new  liberty  prayed  for  in 
the  Petition  of  Right  was  to  be  relieved  from 
martial  law  and  from  the  tyranny  of  com- 
missions appointed  by  the  King.  But  no 
Parliament  was  called  again  until  the  Long 
Parliament  in  1640.  Thus,  England  did 
without  a  free  government  for  eleven  years. 
France  did  without  a  States-General  for 
one  hundred  and  seventy-four  years;  but  in 
both  countries  when  the  people's  representa- 
tives were  re-assembled  their  first  act  was 
to  overthrow  royalty  and  execute  their  king. 
122 


DEVELOPMENT  OF  THESE   RIGHTS 

During  these  eleven  years  monopolies 
were  re-established  and  applied  to  every 
article  of  ordinary  consumption.  Royal 
proclamations  made  the  law;  and  the  courts 
of  Star  Chamber  and  High  Commission, 
outside  the  common  law,  by  cruel  and  bar- 
barous punishment,  without  a  jury  trial, 
maintained  a  reign  of  terror.  The  Bishop 
of  Lincoln  was  fined.  A  poor  clergyman 
who  had  written  him  a  letter  had  his  ears 
nailed  to  the  door  in  front  of  his  school.  The 
father  of  the  Archbishop  of  Glasgow  had 
one  ear  cut  off  and  his  cheek  branded.  There 
were  no  juries  in  England  and  no  common 
law.  Everything  was  done  by  royal  boards 
and  high  commissions — but  finally  arbitrary 
government  split  upon  the  old  rock.  The 
King  endeavored  to  impose  customs  duties 
without  an  Act  of  Parliament  upon  the 
merchants  of  England;  they  resisted;  and 
when  they  were  brought  before  the  King's 
Council,  one  of  them — Richard  Chambers — 
ventured  to  declare  that  ''merchants  are  in 
no  part  of  the  world  so  screwed  as  in  Eng- 
land. In  Turkey  they  have  more  encour- 
agement"; whereupon  he  was  committed  to 
the  Marshalsea  for  contempt. 

123 


THE  AMERICAN  CONSTITUTION 

Next,  the  King  turned  his  attention  to  the 
land  owners.  He  imposed  a  huge  tax  to 
build  a  supposed  navy,  which  never  existed 
but  on  paper.  But  in  the  effort  to  collect 
this  tax,  he  ran  up  against  a  modest  country 
gentleman,  one  John  Hampden  of  Bucking- 
hamshire, who  refused  to  pay  twenty  shil- 
lings, being  the  sum  assessed  upon  his  estate. 
The  result  you  know.  Charles  committed 
Eliot  and  eight  of  his  associate  members  to 
the  Tower,  and  on  the  day  set  for  its  reas- 
sembling, dissolved  the  Parliament  in  which 
John  Eliot  had  made  his  last  and  Oliver 
Cromwell  his  first  speech.  John  Eliot  died 
in  gaol;  and  when  his  son  asked  permission 
to  take  his  father's  remains  for  burial  to  the 
country  home  in  Devon  where  he  was  loved 
and  honored  by  all,  the  King  wrote: — "Let 
Sir  John  Eliot  be  buried  in  the  church  of 
that  parish  where  he  died."  Then  followed 
eleven  years  of  personal  rule,  thorough  and 
strenuous.  The  king's  leader  was  Straf- 
ford— of  whom  Green,  the  historian,  said, 
"Strafford  is  the  one  English  statesman  of 
all  time  who  may  be  said  to  have  had  no 
sense  of  law."  And  Strafford  was  finally 
indicted  for  this,  that  is  to  say,  for  conspiring 
124 


DEVELOPMENT  OF  THESE  RIGHTS 

to  subvert  the  law  of  England;  Charles  could 
not  save  him  and  he  perished  on  the  scaffold. 
Charles  himself  was  beheaded  in  1649. 

We  have  no  time  to  dwell  upon  the  Com- 
monwealth except  to  say  that  its  later  history 
shows  as  well  the  danger  of  unconstitutional 
government  by  a  legislature  as  by  a  king. 
Charles  did  little  worse  than  the  Rump 
Parliament,  while  the  Protector  showed  a 
disregard  of  the  right  to  law  quite  as  cynical 
as  that  of  a  Stuart  and  much  more  frank. 
Disgusted  with  his  Parliament  he  marched 
in  with  a  file  of  soldiers,  cleared  the  mace 
from  the  table  and  closed  and  locked  the 
doors.  Bradshaw,  president  of  the  Council, 
said  to  Cromwell,  "Sir,  you  are  mistaken 
to  think  that  the  Parliament  is  dissolved. 
No  power  under  heaven  can  dissolve  them 
but  themselves.  Therefore,  take  you  notice 
of  that."  And  after  eight  years  of  govern- 
ment by  the  Army,  the  survivors  of  this  same 
House  of  Commons,  without  a  new  election, 
reassembled  to  welcome  Charles  IL 

It  is  a  curious  fact  that  it  was  the  con- 
servative  element   in   the   House  who  en- 
deavored to  persuade  Cromwell  to  take  the 
title  of  king.     Our  American  historian  tells 
125 


THE  AMERICAN  CONSTITUTION 

us  that  the  reason  of  this  was  that  they 
beheved  that  the  prerogative  as  Hmited  and 
defined  by  law,  the  hmited  powers  of  a  king, 
were  less  dangerous  to  public  liberty  than 
the  novel  powers  of  a  protector  unrestrained 
by  any  constitution.  Cromwell  was  deterred 
from  accepting  it  by  the  angry  protest 
of  the  army;  but  he  succeeded  in  getting 
through  the  second  new  constitution  in  two 
years— the  "Act  of  Government,"  under 
which  the  supreme  power  was  still  to  re- 
main with  Cromwell;  and — what  he  par- 
ticularly wanted — he  was  authorized  to 
name  his  own  successor  (Taylor,  II,  352.) 
Mr.  Roosevelt  omits  to  note  this  in  his  "  Life 
of  Cromwell." 

Both  Charles  II  and  James  II  interfered 
with  the  people's  liberties  mainly  in  their 
religious  rights,  and  that  need  not  detain 
us,  but  James  increased  the  standing  army 
to  30,000.  James  II,  however,  played  the 
old  trick  of  consulting  the  judges  privately 
as  to  what  their  opinion  would  be  on  a  pro- 
posed course  of  policy,  and  when  it  ap- 
peared that  the  chief  justice,  the  chief  baron 
of  the  exchequer  and  two  other  judges  were 
of  opinion  that  the  King  could  not  suspend 
126 


DEVELOPMENT  OF  THESE  RIGHTS 

the  law  of  England  in  the  interest  of  the 
Catholics,  these  four  judges  were  dismissed 
and  their  places  supplied  by  others  who  were 
known  to  be  subservient  to  the  royal  will. 
"I  am  determined,"  said  the  king,  "to  have 
twelve  judges  who  will  be  all  of  my  mind  as 
to  this  matter."  "Your  Majesty,"  answered 
the  chief  justice,  Jones,  ''Your  Majesty 
may  find  twelve  judges  of  your  mind,  but 
hardly  twelve  lawyers." 

The  people,  however,  did  win  from 
Charles  II  the  great  Habeas  Corpus  Act 
which  is  the  final  perfection  of  that  machin- 
ery for  the  personal  liberty  of  the  English- 
man that  I  spoke  of  in  my  second  lecture. 
But  James  kept  on  interfering,  and  again 
the  people  rose,  expelled  their  king,  and 
the  rising  wave  of  the  Revolution  left  in 
its  flood  the  highest  constitutional  docu- 
ment since  Magna  Charta — the  great  Bill  of 
Rights  I  have  so  often  referred  to.  It  re- 
peats all  the  old  liberty  rights  we  have  been 
discussing  in  these  four  lectures  and  adds 
to  them  a  prohibition  of  standing  armies 
without  the  consent  of  the  people,  asserts 
the  right  of  people  to  bear  arms,  protects 
them  from  excessive  bail  or  excessive  fines 
127 


THE  AMERICAN  CONSTITUTION 

or  cruel  punishments,  and  guarantees  every 
man  the  right  to  assemble  for  political  pur- 
poses and  to  petition  the  government.  And, 
most  of  all,  it  adds  the  great  principle  "That 
the  pretended  power  of  suspending  laws, 
or  the  execution  of  laws,  by  regal  authority, 
as  it  hath  been  assumed  and  exercised  of 
late,  is  illegal."  Finally,  twelve  years  later, 
came  the  Act  of  Settlement— interesting 
to  Englishmen  because  it  provides  for  the 
descent  of  the  Crown  to  Protestants  only, 
but  mainly  notable  to  us  because  it  puts  back 
the  provision  omitted  in  the  Bill  of  Rights 
that  all  judges  should  hold  their  office  for 
life  or  during  good  behavior,  for  a  fixed 
salary,  and  could  only  be  removed  by  Parlia- 
ment and  never  by  the  king;  and  adds  an- 
other significant  principle  that  the  king  may 
not  pardon  a  man  whom  the  Commons  wish 
to  impeach.  And  this,  the  last  of  the  Eng- 
lish constitutional  documents,  closes  with 
the  sentiment  with  which  our  first  lecture 
began — the  laws  of  England,  for  securing 
the  rights  and  liberties  of  the  people,  are 
the  birthright  of  the  people;  and  all  queens 
and  kings  ought  to  administer  the  govern- 
ment according  to  said  laws.  And  they 
128 


DEVELOPMENT  OF  THESE  RIGHTS 

mean  here  by  the  "laws"  what  we  now  call 
the  English  Constitution. 

Nearly  a  quiet  century  of  government  by 
Parliament  went  by,  and  at  last  we  come 
to  George  III.  And  he  lost  America  by 
failing  to  understand  two  of  the  earliest 
and  cardinal  principles  of  the  English  Con- 
stitution. "'George,  be  King,'  was  the  les- 
son his  mother  repeated  to  him  as  a  child," 
says  Horace  Walpole.  He  was  the  most 
popular  sovereign  England  had  had  in  two 
hundred  years,  and  he  determined  at  the 
outset  to  reassert  the  personal  power  of  the 
Crown.  Taswell-Langmead  tells  us  that 
the  very  characteristics  which  in  a  private 
station  would  have  been  accounted  merits, 
rendered  him  unfit  to  be  a  constitutional 
king.  **By  his  meddlesome  energy  and 
restless  activity  in  regulating  every  affair  of 
state  from  the  greatest  to  the  least,  combined 
with  a  resolute  obstinacy  in  enforcing  his 
own  views  against  the  opinion  of  his  consti- 
tutional advisers,  he  succeeded  in  reducing 
the  nation  from  prosperity  to  the  depths  of 
adversity  and  in  depriving  the  country  for- 
ever of  its  American  colonies."  In  1780 
even  the  House  of  Commons  carried  the 
129 


THE  AMERICAN  CONSTITUTION 

celebrated  resolution  introduced  by  Mr. 
Dunning  "That  the  influence  of  the  Crown 
has  increased,  is  increasing  and  ought  to  be 
diminished,"  but  it  was  not  until  America 
was  lost  that  George  III  came  back  to  con- 
stitutional government.  In  a  sense,  there- 
fore, we  Americans — and  so  every  constitu- 
tional historian  is  agreed— we  Americans 
saved  for  the  last  time  the  liberties  of  the 
English  people.  In  asserting  our  own,  they 
resisted  us  and  we  were  lost  to  them;  but 
in  the  process  we  gained  them  theirs.  To 
attempt  to  govern  any  English  people  with- 
out a  legislature  by  the  King  in  Council, 
by  the  Executive  alone;  to  attempt  to  tax 
even  loyal  Canada  by  Act  of  Parliament  at 
Westminister  and  not  of  Parliament  at 
Ottawa;  to  subject  Australia  or  New  Zea- 
land to  the  government  even  of  an  imperial 
House  of  Commons  in  which  they  were 
not  represented; — would  now  call  forth  the 
jeers  even  of  a  Tory  majority.  This  is  the 
last  of  the  constitutional  principles  we  have 
given  back  to  England.  We  left  the  British 
Empire  because  there  was  too  much  personal 
government.  England  learned  the  lesson  well 
and  no  king  will  repeat  the  mistake  again. 
130 


THE  EXPRESSION  OF  THESE  LIBERTIES 
IN  OUR  FEDERAL  CONSTITUTION 

ALL  of  these  liberties  we  have  been  dis- 
l\  cussing,  the  Hberties  of  the  people,  were 
re-established  in  our  Federal  Constitution 
in  their  early  and  most  vigorous  form,  or  in 
such  improved  form  as  the  experience  of  our 
English  ancestors  under  the  Stuarts  and 
Tudors,  and  the  experience  of  our  own 
ancestors  under  George  III,  suggested. 
Except  the  two  or  three  cardinal  constitu- 
tional inventions  that  we  made,  it  may  be 
doubted  whether  there  is  anything  in  our 
Constitution  that  is  more  than  an  expression 
or  an  amplification  of  an  English  Constitu- 
tional principle.  But  it  will  be  extremely 
interesting  to  consider  both  the  form  of 
words  that  we  chose  and  the  number  of 
principles  we  decided  to  express  constitu- 
tionally; and  more  interesting  still  to  note 
their  division  among  the  Executive,  the 
131 


THE  AMERICAN  CONSTITUTION 

Legislative  and  the  Judicial  powers;  and 
the  other  great  three-fold  division  between 
the  powers  of  the  Federal  Government,  the 
powers  or  rights  of  the  States,  and  the  rights 
reserved  or  retained  by  the  people, — which 
forms  indeed  the  special  subject  of  this 
course  of  lectures.  We  shall  also  have 
occasion  to  speak  particularly  of  such  rights 
or  powers  as  seem  to  be  of  overweening 
importance  in  the  future.  Indeed,  for  the 
rest  we  shall  look  to  the  future  rather  than 
to  the  past. 

It  is  most  interesting  to  make  a  careful 
analysis  of  our  Constitution,  and  note  what 
importance  it  apparently  assigns  to  these 
several  divisions  of  power.  We  will  con- 
tinue our  custom  of  taking  up  the  rights  of 
the  people  first,  that  domain  of  sovereign 
power  which  President  Roosevelt  seems 
to  think  was  all  surrendered  by  the  people 
to  the  Federal  Government  when  they 
formed  the  Union.  The  Constitution  of 
the  United  States  in  its  body  and  in  the 
Amendments  expresses  or  recognizes,  in 
thirty-nine  clauses,  no  less  than  sixty-six 
of  these  rights  reserved  to  the  people,  which 
the  Federal  Government  cannot  take  away. 
132 


EXPRESSION  IN  THE  CONSTITUTION 

On  the  other  hand,  when  we  come  to  the 
powers  that  are  surrendered,  given  up  by 
the  people  or  by  the  States,  to  the  Central 
Government,  we  can  count,  on  a  careful 
analysis,  in  fifty-seven  clauses  but  sixty- 
four.  Then  we  can  count  eleven  more 
things  which,  being  forbidden  in  the  Con- 
stitution to  both  the  Federal  Government 
and  the  State  Governments,  are  inferentially 
left  with  the  people, — making  seventy-seven 
rights  or  powers  in  all  expressly  mentioned 
or  necessarily  implied  by  this  short  docu- 
ment, which  are  forever  to  be  left  in  the 
people's  hands. 

Now,  as  to  the  division  of  these  sixty-four 
Federal  rights  or  powers  between  the  three 
branches  of  Government,  Legislative,  Ex- 
ecutive, and  Judicial;  and  I  put  these  in 
the  order,  as  the  Constitution  does,  of  their 
relative  importance  and  dignity.  I  shall 
have  failed  indeed,  if  I  have  not  persuaded 
you  that  the  Anglo-Saxon  theory  always  was 
that  the  people  through  their  representatives, 
that  is,  the  Legislature,  were  the  sovereign 
power,  the  sovereign  law-making  body,  and 
as  such,  superior  to  the  Executive,  the 
King.     Our    Constitution    recognizes    that 

^33 


THE  AMERICAN  CONSTITUTION 

by  adopting  this  order,  mentioning  the 
departments  as  so  arranged.  Taking,  there- 
fore, the  legislative  power  first,  we  can 
count  nineteen  powers  expressly  given  to 
Congress  and  we  can  count  about  seventy 
expressly  denied. 

Our  Executive,  as  you  know,  corresponds 
to  the  English  King,  though  elected  but  for 
a  term  of  four  years,  and,  as  our  Supreme 
Court  has  said,  *'With  the  loss  of  many  a 
flower  of  the  English  King's  prerogative." 
On  the  other  hand,  he  has,  in  many  respects, 
more  powers  than  an  English  King  under 
the  Constitution,  as  we  shall  find  when  we 
consider  them  in  detail.  Great  as  they 
are,  however,  I  can  only  find  seven  powers 
actually  given  to  the  President  by  the  Con- 
stitution of  the  United  States.  All  others 
are  therefore  denied.  And  in  this  connec- 
tion it  is  a  most  striking  thing  to  note  that 
for  the  President  the  Constitution  expressly 
provides  a  duty  and  an  oath.  The  duty  is 
to  execute  the  laws;  (Art.  3,  Section  3)  "He 
shall  take  care  that  the  laws  be  faithfully 
executed."  The  oath  is  (Art.  3,  Section  i, 
clause  7)  "To  preserve,  protect,  and  defend 
the  Constitution  of  the  United  States." 
134 


EXPRESSION  IN  THE  CONSTITUTION 

The  judicial  powers  are  almost  negligible, 
for,  in  a  sense,  the  courts  have  none.  The 
Constitution  only  recognizes  the  Supreme 
Court.  It  gives  to  Congress  the  power  to 
make  other  courts.  Their  duty,  in  a  gen- 
eral way,  is  to  try  all  suits  between  two 
States,  or  where  the  United  States  itself  is 
a  party;  to  try  generally  all  cases  arising 
on  the  sea  or  from  the  navigation  of  ships, 
— what  we  call  Admiralty — and  finally,  what 
has  grown  most  important  of  all,  to  try  any 
suit  that  may  happen  to  be  between  citizens 
of  different  States  or  between  a  corporation 
of  one  State  and  a  citizen  of  another.  They 
are  given  no  other  powers,  and  their  main 
constitutional  restriction  is  that  they  shall 
try  no  case  coming  up  from  a  State  court 
except  according  to  the  common  law. 

When  we  come  to  our  other  division,  our 
second  American  invention  which  makes  it 
possible  for  a  strong  national  government  to 
coexist  with  the  local  self-government  of  a 
free  people,  the  division  between  the  National 
powers  and  "States'  Rights" — the  rights 
never  given  by  the  people  to  the  Federal 
Government — w^e  shall  find  again  that  it  is 
the  people  that  are  primarily  thought  of  in 
135 


THE  AMERICAN  CONSTITUTION 

the  Constitution.  The  number  of  rights 
reserved  to  them  from  the  Federal  Gov- 
ernment is,  as  we  have  said,  sixty-six,  to 
which  we  must  add  the  rights  which 
resuk  from  things  that  are  prohibited 
both  to  the  Federal  Government  and  to  the 
States,  making  seventy-seven  in  all.  The 
rights  given  to  the  States  by  the  Federal 
Constitution,  that  is,  the  rights  therein 
mentioned  as  expressly  reserved  to  them, 
are  only  nineteen.  Of  these,  twelve  are 
forbidden  to  the  Federal  Government,  four 
are  shared  or  may  be  exercised  by  both, 
and  three  are  left  indefinite;  but  this  small 
number,  nineteen,  of  course,  does  not  rep- 
resent all  the  rights  reserved  to  the  States. 
Under  the  Tenth  Amendment,  all  rights  not 
expressly  given  to  the  Federal  Government 
are  reserved  to  the  States  or  to  the  people. 
These  nineteen  clauses  merely  represent 
those  rights  which,  for  some  reason,  were 
thought  sufficiently  important  to  mention 
expressly  in  the  Constitution. 

Finally,  the   number  of  rights  expressly 

given  to  the  Federal  Government  amounts, 

as  I  said,  to  sixty-four.     Of  these,  forty-three 

are  forbidden  to  the  States  and   seventeen 

136 


EXPRESSION  IN  THE  CONSTITUTION 

may  apparently  be  shared  or  exercised  by 
the  States.  At  least,  there  is  nothing  in  the 
Constitution  to  forbid  it.  Only  four  rights 
are  expressly  shared,  divided,  between  the 
Federal  Government  and  a  State:  the  right 
of  making  a  new  State  out  of  two  States 
previously  existing,  or  dividing  an  old  State 
into  two  or  more  new  States;  this  can  only 
be  done  by  the  joint  action  of  the  National 
Congress  and  the  legislatures  of  the  States 
concerned;  the  right  of  levying  imposts 
or  duties  with  the  consent  of  Congress;  the 
duty  of  maintaining  a  republican  form 
of  Government;  and  the  power  of  amend- 
ing the  Constitution.  In  only  one  case  can 
the  Federal  Government  coerce  a  State; 
that  is,  when  it  ceases  to  maintain  a  republi- 
can form  of  Government;  though  the  Four- 
teenth Amendment  added  another  case  by 
implication,  (apparently  we  were  too  proud 
to  put  it  in  words,)  that  is,  that  the  United 
States  may  coerce  a  State  if  it  secedes.  The 
war  settled  that.  On  the  other  hand  Article 
5  of  the  original  Constitution  seems  express- 
ly to  provide  that  a  State  may  secede  if  it 
be  'deprived  of  its  equal  suffrage  in  the 
Senate.  It  is  under  this  clause  that  we  are 
^S7 


THE  AMERICAN  CONSTITUTION 

helpless  to  alter  a  state  of  things  where 
Nevada,  having  about  the  population  of 
the  town  of  Brookline,  sends  two  senators 
to  the  United  States  Senate. 

Recapitulating,  though  I  suppose  this  will 
be  interesting  only  to  persons  who  delight 
in  figures,  there  are  thirty-nine  clauses  ex- 
pressing powers  left  with  the  people  in  the 
Constitution  of  the  United  States,  though 
at  least  fifty  or  sixty  more  are  so  left  by 
necessary  implication.  Sixty-six  clauses 
contain  things  forbidden  to  the  States,  and 
eighteen  contain  things  expressly  allowed 
them.  Sixty-one  clauses  state  things  for- 
bidden the  Federal  Government,  and  sixty 
the  things  expressly  allowed  it.  Three 
things  are  expressly  given  to  both  the 
Federal  Government  and  the  States,  and 
twelve  clauses  contain  things  expressly 
forbidden  to  both,  while  thirty-nine  clauses 
express  powers  withheld  by  the  States  or 
the  people.  As  a  grand  result,  our  Federal 
Constitution  contains  one  hundred  and  fif- 
teen denials  and  only  seventy-nine  affirma- 
tions of  power;  while  there  are  thirty-nine 
express  reservations  of  sovereign  domain 
left  to  the  people.  The  excess  of  negations 
138 


EXPRESSION  IN  THE  CONSTITUTION 

over  affirmations  must  not  surprise  us,  for 
all  constitutions  consist  mainly  in  imposing 
negatives.     You    will    remember    that    the 
British  Constitution,  which  we  have  already 
studied,  consists  mainly  in  showing  what  the 
King  or  his  officers  may  not  do;   and  the 
American    Constitution    is    more    complex, 
because  it  imposes  negations  on  the  Congress 
and  the  States  as  well  as  on  the  President. 
Taking  the  people's  rights  first,  the  car- 
dinal principle  of  all— that  the  people  are 
sovereign  and  that  they  have  only  clothed  ^ 
the  National  Government  with  part  of  their 
powers — is  expressed  in  two  places.  The  first 
words  of  the  Preamble  are  "We,  the  people 
of  the  United  States,  do  establish  this  Con-     ^ 
stitution."     It  is  not  done  by  the  States,  as 
the  Secession  States'-rights  people  used  to 
claim,  it  is  done  by  the  people  as  a  whole. 
State  lines  for  a  moment  disappear  and  are 
merged   in  the  mightier  fabric  created  by 
the  people  of  the  Nation. 

On  the  other  hand,  turn  to  the  Ninth  and 
Tenth  Amendments.  *'The  enumeration  in 
the  Constitution,  of  certain  rights,  shall  not 
be  construed  to  deny  or  disparage  others 
retained  by  the  people."  "The  powers 
139 


THE  AMERICAN  CONSTITUTION 

not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the 
States,  are  reserved  to  the  States  respec- 
tively or  to  the  people."  This  is  the  great 
assertion  that  seems  to  give  the  present 
administration  so  much  trouble, — the  ex- 
press statement  that  until  the  people  choose 
to  amend  the  Constitution,  they  do  not  wish 
the  United  States  to  exercise  any  powers 
they  have  not  expressly  delegated  to  it. 
Remember,  most  of  the  States  refused  to 
come  into  the  Union  until  they  got  the  prom- 
ise that  this  Tenth  Amendment  should  be 
adopted,  which  was  done  November  3,  1791, 
only  two  years  after  the  original  Constitu- 
tion went  into  force.  There  would  have 
been  no  Union  but  for  this  Amendment. 
There  would  have  been  no  Nation  but  for 
the  sacred  promise  to  the  people  and  the 
States  that  these  powers  should  be  reserved. 
Notice  the  words,  "The  powers  not  del- 
egated to  the  United  States  by  the  Constitu- 
tion." No  powers  are  or  can  be  delegated 
by  the  United  States  to  the  States,  or  still 
more,  to  the  people.  It  is  the  other  way 
about.  It  is  the  people  or  the  States  who 
delegate  powers  to  the  United  States.  Now, 
140 


EXPRESSION  IN  THE  CONSTITUTION 

President  Roosevelt  in  his  great  speech  at 
Harrisburg,  October    3,    1906,  used    these 
words  when  speaking  of  his  desire  to  regulate 
and  control  large  fortunes:  "Only  the  Nation 
can  do  this  work.     To  relegate   it  to  the 
States  is  a  farce  and  is  simply  another  way 
of  saying  that  it  shall  not  be  done  at  all." 
Now  I  have  nothing  to  do  at  present  with 
the  argument  that  there  should  be  a  pro- 
hibitive tax  on  the  acquiring  of  large  fort- 
unes, nor  even  with  the  question  whether 
that  is  a  function  that  under  our  system 
should  belong  to  the  States  or  to  the  Nation 
to  regulate,  but  I  would  call  your  attention 
particularly  to  the  President's  words.     He 
said   it   would   be   useless   to   relegate   this 
power  to  the  States.     I  watched  very  care- 
fully to  see  whether,  in  the  repetitions  of  this 
speech,    that    word    ''relegate"    would    be 
changed,  but  it  was  not  withdrawn.     On  the 
contrary  it  was  used,  if  I  mistake  not,  once 
or  twice  again.     But  to  use  that  one  phrase, 
to  "relegate"  a  political  power  to  the  States, 
misstates    the    principle    of    the  American 
Constitution.     Under  the  Constitution,  the 
Nation  can  relegate  nothing  to  the  States. 
It  is  the  States  or  the  people  that  delegate 
141 


THE  AMERICAN  CONSTITUTION 

powers  to  the  Nation.  Congress  and  the 
President  have  no  power  to  delegate  or 
relegate  anything  to  the  States.  They  could 
not  if  they  tried.  If  a  power  is  not  granted 
to  the  Federal  Government,  it  has  nothing 
to  do  with  it.  If  the  power  is  granted,  it  is 
unconstitutional  for  it  to  break  faith  with 
the  Nation's  compact  with  the  people  and 
hand  it  back  to  the  States  again.  That 
last  matter  was  carefully  considered  in  the 
Industrial  Commission  when  one  of  the 
plans  advanced  for  the  regulation  of  Trusts 
was  to  relegate  to  the  States  the  power  over 
interstate  commerce  which  the  people  had 
delegated  to  the  Nation.  It  was  felt  that 
there  might  be  a  grave  constitutional  objec- 
tion. A  trust  which  is  given  to  you  may 
not  by  you  be  handed  over  to  another.  But 
whether  that  be  so  or  not,  of  a  power  actu- 
ally given  to  the  United  States,  there  is  no 
question,  it  is  axiomatic,  that  a  power  never 
given  to  the  United  States,  never  parted  with 
by  the  people,  cannot  be  either  relegated  or 
delegated  back  from  the  Nation  to  the 
States.  It  is  the  States,  the  people,  that 
make  the  Nation — not  the  Nation  the  States. 
It  is  elementary  that  the  Federal  Govern- 
142 


EXPRESSION  IN  THE  CONSTITUTION 

ment  has  no  power  to  delegate  anything. 
It  would  be  the  creature  endowing  the 
creator.  It  is  the  States — the  people — 
that  have  created  the  Federal  Government, 
and  the  Federal  Government  Is  there  only 
to  obey  their  behest.  A  sovereign  may 
make  a  grant  to  his  people,  but  a  gov- 
ernment of  limited  powers  may  not  endow, 
with  any  rights,  the  people  of  whom  it  is 
but  the  servant. 

This  is  the  great  law  of  the  Constitution. 
The  Constitution  is  the  tablet  where  the 
people  have  written  their  will  and  they  have 
written  their  will  that  It  shall  never  be 
changed  save  in  the  manner  they  have 
appointed.  That  Is,  by  an  amendment 
ratified  by  the  people's  representatives  in 
three-fourths  of  the  States.  In  another 
speech  written  after  the  President's  atten- 
tion had  been  called  to  this  amendment,  he 
says  that  he  is  for  the  people  and  for  the 
Constitution  when  it  reserves  the  people's 
rights,  but  not  when  it  perpetuates  the  peo- 
ple's wrongs.  Of  that  who  is  to  be  the 
judge, — one  man,  for  the  time  being,  the 
President  of  the  United  States,  or  the  people 
of  the  United  States  ? 
H3 


THE  AMERICAN  CONSTITUTION 

The  fundamental  error  lying  in  these 
conceptions  of  our  government  is  to  sup- 
pose that  all  powers  exercised  in  other 
countries,  kingdoms,  or  empires,— ^sovereign 
States,  as  they  are  called, — have  been 
necessarily  under  our  Constitution,  reposed 
in  some  branch  of  the  Government,  State 
or  Federal.  In  this  same  speech,  the  Pres- 
ident points  out  that  there  may  be  gaps  of 
power,  gaps  of  prerogative,  left  between  the 
Nation  and  the  State,  areas  of  domain,  which, 
under  our  system,  are  exercised  by  nobody. 
If  that  be  true,  it  is  because  the  people 
willed  it  so.  We  have  not  clothed  our 
fabric  of  government,  as  I  said  at  the  begin- 
ning, with  all  the  sovereign  powers  of 
European  empires.  As  our  Supreme  Court 
has  said  of  the  President,  and  it  might 
equally  well  say  it  of  Congress,  "He  is  not 
a  king,  even  for  four  years."  The  Federal 
Government  has  indeed  succeeded  to  many 
of  the  rights  of  the  British  Crown  and  Par- 
liament, but,  as  the  great  John  Marshall 
said:  "With  many  a  flower  of  their  pre- 
rogative stripped  away."  But  these  gaps 
of  which  President  Roosevelt  complains, 
are  usually  left  by  the  non-action  of  the 
144 


EXPRESSION  IN  THE  CONSTITUTION 

State,  that  is,  of  the  people  of  a  State.  Does 
that  give  the  Federal  Government  a  right 
to  interfere  ?  Does  it  not  rather  prove  that 
the  people  of  that  State  desire  no  action  on 
that  point  ?  This  is  their  undoubted  pre- 
rogative, the  undoubted  prerogative  of  the 
State.  Conditions  vary,  views  change,  aims 
differ.  Because  a  State  does  not  pass  all 
the  laws  that  it  might  pass,  or  all  the  laws 
that  the  President  of  the  United  States 
thinks  it  should,  does  that  fact  alone  give 
the  Federal  Government  a  right  to  inter- 
vene .f*  We  have  never  passed  any  laws 
against  trusts  in  Massachusetts.  Does  that 
fact,  under  the  Constitution,  authorize  Con- 
gress to  legislate  upon  the  subject  for  us  ^ 
Labor  laws, — the  hours  of  labor, — marriage 
laws, — the  age  of  marriage, — differ  under 
the  statutes  of  all  our  States.  The  dif- 
ference of  climate  alone  is  reason  enough 
for  this,  to  say  nothing  of  social  conditions. 
The  President  seems  to  think,  however, 
that  if  he,  or  Congress,  makes  up  his  mind 
that  a  nine-hour  law  in  factories  is  right, 
that  very  fact  should  authorize  the  Federal 
Government  to  impose  it  on  all  the  States. 
One  of  the  greatest  safeties  of  our  system  of 
H5 


THE  AMERICAN  CONSTITUTION 

Government  is  that  every  State  has  the  right 
to  try  an  experiment,  to  work  out  its  salva- 
tion in  its  own  way,  and  the  other  States 
profit  by  its  example.  English  people  have, 
for  a  thousand  years,  dearly  kept  their 
liberty,  their  persons,  their  property,  their 
domestic  affairs,  aye,  and  their  political 
affairs,  at  home  in  their  own  hands,  each 
community  making  its  own  rules,  its  own 
customs;  and  they  forced  the  Norman  Kings 
to  respect  them  all.  I  do  not  believe  we 
shall  part  with  this  dearly-won  heritage  on 
any  momentary  impulse  to  extirpate  a 
present  wrong. 

The  second  great  right  of  the  people 
expressly  reserved  in  the  Federal  Constitu- 
tion I  should  put  as  the  one  I  mentioned 
in  my  first  lecture.  That  wonderful  prin- 
ciple of  the  separation  of  the  powers  and 
allowing  no  man  or  set  of  men  to  exercise 
two  of  them,  to  both  make  the  laws  and 
execute  them  or  judge  those  who  break 
them.  This  I  hold  to  be  the  second  great 
bulwark  of  freedom  for  the  American  peo- 
ple, and  I  will  venture  to  state  that  no  one 
ever  questioned  this  until  very  recently,  if 
at  all.  We  shall  reserve  more  consideration 
146 


EXPRESSION  IN  THE  CONSTITUTION 

of  this  subject  for  a  future  lecture.  To- 
night, merely  by  way  of  example,  I  would 
call  your  attention  to  the  fact  that  the  Inter- 
state Commerce  Commission,  to  a  certain 
extent,  and  the  Federal  Bureau  of  Corpora- 
tions (as  the  President  would  have  it  amend- 
ed) both  make  laws  and  judge  offenders. 
This,  you  know,  was  made  an  objection  to 
the  constitutionality  of  the  Railway  Rate 
Regulation  Bill,  and  it  has  not  yet  been  de- 
cided by  the  Supreme  Court.  Government 
by  boards,  by  commissions,  rather  than  by 
Congress  and  the  other  officers  provided 
for  that  purpose  in  the  Constitution,  is  get- 
ting to  be  a  danger  that  is  not  only  in  the 
Nation  but  in  the  States.  I  would  remind 
you  of  the  abuses  we  found  in  the  last  lect- 
ure which  attended  the  system  in  England, 
especially  under  Charles  and  George  III. 
Let  us  not  forget  it.  A  board  or  commission 
is  not  a  common-law  creation.  It  stands 
between  the  people  and  the  common  law. 
It  is  apt  to  be  an  obstacle  to  the  assertion 
of  their  rights,  a  hindrance  rather  than  a 
help,  and  in  the  long  run  every  board,  yes, 
even  the  railroad  commissions,  the  gas 
commissions  of  the  several  States,  every 
147 


THE  AMERICAN  CONSTITUTION 

board,  tends  to  become  the  creature  of  the 
thing  that  it  was  created  to  control.  This 
separation  of  powers  of  which  I  speak  is, 
of  course,  contained  at  the  beginning  of 
each  of  the  three  articles  in  the  Federal 
Constitution.  Art.  I,  Sec.  i,  where  it  says 
*'  All  legislative  powers  herein  granted  shall 
be  vested  in  a  Congress."  Art.  II,  Sec.  i, 
"The  Executive  power  shall  be  vested  in  a 
President."  Art.  Ill,  Sec.  i,  where  it  says, 
"The  judicial  power  shall  be  vested  in  one 
Supreme  Court."  This  is  as  compendious, 
though  not  perhaps  so  striking,  a  way  of 
putting  this  great  principle,  as  we  find  in 
the  Constitution  of  Massachusetts,  though 
it  does  not  contain  those  splendid  words  of 
explanation,  "To  the  end  that  it  be  a  Gov- 
ernment of  laws  and  not  of  men." 

The  third  great  right  of  the  people  reserved 
in  the  people,  never  delegated  by  them  to 
anybody  to  interfere  with,  is  that  of  liberty; 
and  we  have  fully  discussed  the  history  and 
the  meaning  of  this  great  word  to  English 
ears.  It  is  found  again  in  the  Preamble, 
4th  line,  where  it  says:  "We,  the  people, 
establish  this  Constitution  in  order  to  secure 
the  blessings  of  liberty."  It  is  found  again 
148 


EXPRESSION  IN  THE  CONSTITUTION 

in  the  Fifth  Amendment,  where  it  says  "No 
person  shall  be  deprived  of  liberty  with- 
out due  process  of  law."  It  is  found  again 
in  the  Fourteenth  Amendment,  Section  i, 
where  all  States  are  forbidden  from  making 
or  enforcing  any  law  to  abridge  the  priv- 
ileges or  immunities  of  citizens  of  the  United 
States,  "nor  shall  any  State  deprive  any 
person  of  life,  liberty  or  property  without 
due  process  of  law."  Of  this  right,  I  really 
feel  that  I  need  now  say  no  more.  But  the 
great  guard  of  this  right  is  expressly  guaran- 
teed. Art.  I,  Sec.  9,  CI.  2:  "The  privilege 
of  the  writ  of  habeas  corpus  shall  not  be 
suspended  unless,  when  in  cases  of  rebellion 
or  invasion,  the  public  safety  may  require 
it."  It  does  not  say  who  is  to  suspend  it 
then,  but  by  our  inherited  precedent  it  could 
only  be  by  act  of  Congress.  Lincoln,  how- 
ever, was  compelled  by  the  necessity  of 
public  danger  to  suspend  the  writ  without 
such  consent. 

Related  to  this  personal  right  is  the  provi- 
sion that  no  bill  of  attainder  or  ex  post  facto 
laws  shall  be  passed.  I  have  already  ex- 
plained what  a  bill  of  attainder  is;  and  an 
ex  post  facto  law  is  a  law  made  to  try  a  man 
149 


THE  AMERICAN  CONSTITUTION 

by  after  the  offence  is  committed,  making 
that  a  crime  which  was  not  crime  when  he 
did  it,  or  inflicting  greater  or  severer  punish- 
ment. Closely  related  to  this  also  is  the 
provision  that  judgment  in  cases  of  im- 
peachment shall  only  extend  to  removal 
from  office  and  that  there  shall  be  no  for- 
feiture or  corruption  of  blood  for  treason, 
or  other  offences,  Art.  Ill,  Sec.  3,  CI.  2. 
Clause  I  adopts  the  English  Constitutional 
definition  of  treason;  and  finally,  the  lib- 
erties of  the  people  are  secured  against  too 
much  personal  Government,  against  usurpa- 
tions of  the  Executive,  by  the  requirement 
that  Congress  (Art.  I,  Sec.  4,  CI.  2)  shall 
assemble  at  least  once  in  every  year. 

The  right  of  property  is  expressly  secured 
in  the  Constitution  by  the  clauses  I  have 
mentioned  in  the  Fifth  Amendment  and 
the  Fourteenth  Amendment,  that  neither 
Nation  nor  State  shall  take  away  a  man's 
property  except  by  due  process  of  law;  and 
furthermore,  still  more  effectively,  against 
the  Federal  Government,  by  the  great  provi- 
sion that  there  shall  be  no  taxation  without 
the  consent  of  Congress,  and  that  there  shall 
be  no  direct  taxes  at  all  imposed  upon  the 
150 


EXPRESSION  IN  THE  CONSTITUTION 

people  of  the  United  States.  For  that  is 
the  effect  of  Art.  I,  Sec.  2,  CI.  3,  and  it  was 
intended  to  be  the  effect  when  it  was  adopted. 
That  is  to  say,  there  can  be  no  direct  tax 
unless  it  be  imposed  upon  the  several  States 
absolutely  according  to  their  population. 
Under  this,  the  people  of  Texas,  of  Arkan- 
sas,— of  the  poorer  Southern  States,  would 
have  to  pay  the  same  tax  that  was  paid  by 
the  people  in  New  York  City  or  Boston; 
and  this  makes  the  imposition  of  such  a  tax 
prohibitive,  and  it  was  meant  to  be  so,  for 
the  people  of  the  United  States  will  not  con- 
sent to  a  tax  which  is  not  according  to  the 
amount  of  property,  but  to  the  mere  num- 
bers of  the  people  of  each  State. 

The  freedom  of  the  people's  representa- 
tives is  secured  by  the  provision  that  mem- 
bers of  Congress  shall  be  free  from  arrest  and 
shall  not  be  questioned  in  any  other  place 
for  any  speech  or  debate.  By  Art.  I,  Sec. 
8,  CI.  I,  all  duties,  imposts  and  excises  shall 
be  uniform  throughout  the  United  States. 
The  danger  of  standing  armies  to  the  people 
is  protected  against,  as  I  have  told  you,  by 
Art.  I,  Sec.  8,  CI.  12;  neither  the  President 
nor  Congress  can  maintain  the  regular  army 
151 


THE  AMERICAN  CONSTITUTION 

without  a  vote  of  the  House  of  Representa- 
tives every  two  years ;  and  (Clause  i6),  nei- 
ther the  President  nor  Congress  can  inter- 
fere with  the  State  mihtia  except  when  em- 
ployed in  the  actual  service  of  the  United 
States.  This  is  further  expressly  guaranteed 
in  the  Second  Amendment,  which  also  says, 
that  the  right  of  the  people  to  keep  and  bear 
arms  shall  not  be  infringed,  and  the  Third 
Amendment,  which  says  that  no  soldier  shall 
be  quartered  in  their  houses.  The  religious 
rights  are  found  in  Art.  VI,  Sec.  3,  which 
provides  that  no  religious  tests  shall  ever 
be  required  as  a  qualification  for  office,  and 
again  in  the  First  Amendment,  where  Con- 
gress is  forbidden  to  make  any  law  respect- 
ing the  people's  religion  or  its  free  exercise. 
The  same  amendment  affirms  the  people's 
right  to  freedom  of  speech,  freedom  of  the 
press,  the  right  of  political  assembly  (which 
I  discussed  in  an  earlier  lecture)  and  the 
right  to  petition  the  Government  for  a 
redress  of  grievances.  Then,  closely  con- 
nected with  the  liberty  right  is  the  right  of 
the  people  to  be  secure  in  their  houses, — 
"An  Englishman's  house  is  his  castle." 
Under  the  Fourth  Amendment  nobody,  not 
152 


EXPRESSION  IN  THE  CONSTITUTION 

even  an  officer  or  a  magistrate,  or  a  police- 
man, may  enter  a  person's  house  or  search 
his  papers  and  effects  without  a  formal 
warrant  duly  issued  upon  probable  cause, 
supported  by  sworn  testimony  and  stating 
the  reason  why,  the  crime  charged,  the 
places  to  be  searched  and  what  they  expect 
to  find.  The  Sixth  Amendment  guarantees 
to  the  people  the  great  liberty  right  of  trial 
by  jury,  of  being  confronted  with  witnesses 
against  him,  of  having  witnesses  in  his 
favor;  and  the  Seventh  Amendment  guaran- 
tees trial  by  jury  in  civil  cases  and  insists 
upon  the  common  law  in  any  court  of  the 
United  States,  while  the  Eighth  Amendment 
prohibits  excessive  bail,  which,  you  remem- 
ber, was  one  of  the  methods  of  evading  the 
habeas  corpus  employed  by  the  Stuart  Kings. 
These  are  all  commonplaces,  perhaps.  The 
right  of  a  man  to  a  jury  or  a  grand  jury  is 
the  cornerstone  of  our  whole  social  fabric. 
Not  to  be  questioned  except,  indeed,  in  our 
insular  possessions.  But  there  is  a  clause 
of  the  Fifth  Amendment  which  is  to  be  very 
much  debated  from  now  on,  that  is,  that 
other  constitutional  provision  which  guaran- 
tees that  no  person  shall  be  compelled  in  any 
153 


THE  AMERICAN  CONSTITUTION 

criminal  case  to  be  a  witness  against  himself; 
that  is,  compelled  to  furnish  evidence  which 
may  convict  him  of  a  crime.  This,  you 
remember,  was  the  great  point  in  the  Chicago 
Beef  Trust  cases.  Under  a  carelessly  drawn 
Act  of  Congress,  all  corporations  engaged 
in  interstate  commerce  were  compelled  to 
furnish  testimony,  when  desired,  by  Mr. 
Garfield,  head  of  the  Bureau  of  Corpora- 
tions. Mr.  Garfield  forced  the  great  pack- 
ers in  Chicago  to  give  him  that  testimony 
and  then,  apparently  to  his  surprise  and 
that  of  the  President,  found  that  the  Fifth 
Amendment  protected  them  from  convic- 
tion for  the  offences  their  own  testimony 
had  disclosed. 

You  may  remember  the  very  severe  crit- 
icism imposed  by  the  President  upon  one 
judge  for  his  decision  sustaining  the  people's 
liberties  in  this  particular.  With  every  de- 
sire to  convict  offenders  of  the  Chicago  Beef 
Trust,  he  could  not,  as  an  honest  judge, 
annul  this  cardinal  guaranty  of  Anglo- 
Saxon  liberty;  but  after  his  decision  was 
rendered,  it  was  referred  to  with  disapproval 
by  the  President  in  a  message  to  Congress. 
In  fact,  his  remarks  were  almost  identical 
154 


EXPRESSION  IN  THE  CONSTITUTION 

with  the  remarks  that  I  told  you  were  made 
by  James  I  of  the  great  Coke,  when  he  also 
refused  to  carry  out  the  wish  of  the  Ex- 
ecutive; though  the  story,  widely  dissemi- 
nated, has  happily  proven  false,  that  a  cer- 
tain other  judge, — a  higher  judge, — was  ap- 
proached by  the  President  or  his  agent  and 
asked  whether  he  would  affirm  this  decision 
if  it  were  appealed  and  came  before  his 
court,  and  made  the  same  answer  that  the 
great  Coke  made  to  King  James  "Sir, 
when  that  case  comes  before  me  for  judg- 
ment, I  will  consider  it  as  becometh  a  just 
Judge." 

The  next  great  popular  right  is  that  of 
equality, — political  equality,  and,  as  the 
President  has  well  said,  "Equality  of  oppor- 
tunity." How  is  that  guaranteed  in  the 
Federal  Constitution  ?  Well,  in  the  first 
place,  the  Preamble  uses  the  phrase  "Gen- 
eral welfare,"  which  seems  to  imply  it.  Art. 
I,  Sec.  9,  forbids  titles  of  nobility.  Art. 
IV,  Sec.  2,  says  that  the  citizens  of  each 
State  shall  be  entitled  to  all  privileges  and 
immunities  of  citizens  in  the  several  States; 
but  after  the  slaves  were  emancipated, 
these  expressions  were  not  considered  suffi- 
155 


THE  AMERICAN  CONSTITUTION 

cient,  and  the  Fourteenth  Amendment  was 
adopted.  "No  State  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges 
or  immunities  of  citizens  of  the  United 
States,  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the 
laws." 

These  are  the  six  or  seven  great  cardinal 
rights  which  are  expressly  in  the  Constitu- 
tion reserved  to  the  people  under  that  name, 
but  this  by  no  means  ends  the  category  of 
the  people's  rights.  If  the  President  intends, 
as  he  says,  to  enforce  the  Constitution  when 
it  represents  the  people's  rights,  but  not 
when  it  represents  the  people's  wrongs,  he 
will  have  to  consider  many  another  sentence 
in  the  Constitution  even  with  this  limited 
view.  Although  he  has  the  right  to  call 
together  Congress  in  special  session,  you 
will  see  that  he  cannot  prevent  their  assem- 
bling whenever  they  choose,  and  they  are 
bound  to  the  people  to  assemble  at  least  once 
every  year.  Neither  the  President  nor  the 
Senate  has  the  power  to  originate  taxation 
(Art.  I,  Sec.  7).  Neither  the  President  nor 
Congress  can  interfere  with  the  State  Mili- 
tia except  when  employed  in  the  actual 
156 


EXPRESSION  IN  THE  CONSTITUTION 

service  of  the  United  States.  In  Art.  I,  Sec. 
9,  CI. 5,  you  will  find  a  very  important  provi- 
sion. No  tax  or  duty  shall  be  laid  on  arti- 
cles exported  from  any  State.  The  clear 
intention  of  the  Constitution  was  to  make 
trade  between  the  States  absolutely  free,  to 
give  the  power  to  nobody  to  control  it  or 
prohibit  it  in  any  way,  though  when  we 
come  to  discussing  interstate  commerce  we 
shall  find  a  curious  change  has  taken  place 
in  our  view  of  this  matter  in  the  last  few 
years.  And  the  next  clause  says  that  no 
preference  shall  be  given  by  any  regulation 
of  commerce  to  the  ports  of  one  State  over 
those  of  another.  Some  people  think  that 
under  the  new  law,  the  Interstate  Commerce 
Commission  is  giving  a  preference  to  Balti- 
more and  other  southern  ports  over  Boston. 
Art.  Ill,  Sec.  i,  removes  judges  from  the 
power  of  the  President  after  they  have  once 
been  appointed,  by  requiring  not  only  that 
they  shall  hold  oflftce  for  life,  but  that  their 
compensation  may  not  be  diminished  dur- 
ing their  continuance  in  office,  though  it 
may  be  increased.  And  finally,  life,  liberty, 
and  property  are  expressly  guaranteed, 
not  only  by  the  Nation  to  the  individual, 

157 


THE  AMERICAN  CONSTITUTION 

but  to  the  individual  as  against  the  State 
Governments,  by  the  Fourteenth  Amend- 
ment. 

The  rights  of  the  States  and  the  powers 
of  the  Federal  Government  will  form  the 
subject  of  our  next  two  lectures.  It  may 
be  well  to  close  this  with  some  consideration 
of  the  powers  given  to  the  President,  and  the 
powers  given  to  Congress,  and  compare  the 
result  with  what  we  found  in  England.  We 
have  briefly  sketched  the  rights  of  the  peo- 
ple which  neither  the  President  nor  Congress 
can  give  away.  Now,  what  powers  have 
the  people  delegated  to  them  ? 

Congress  in  the  first  place  is  not  omnip- 
otent as  it  is  in  England,  but  its  powers 
of  legislation  are  definitely  limited  to  seven- 
teen subjects,  and  to  such  laws  as  are  neces- 
sary and  proper  for  carrying  into  execution 
both  these  seventeen  powers  and  all  other 
powers  which  are  given  by  the  Constitution 
to  the  United  States  Government.  As  I 
have  told  you,  the  Federal  Government,  the 
Government  of  the  United  States,  is  mainly 
political;  so  you  will  find  that  most  of  these 
powers  are  political.  That  is  to  say,  the 
great  power  of  Government  is  to  collect  or 
158 


EXPRESSION  IN  THE  CONSTITUTION 

raise  moneys,  by  duties  and  excises,  for  the 
purpose  of  the  defence  of  the  Union  and  the 
general  welfare  of  the  United  States.  This 
duty  is  put  first;  the  necessary  National 
power  to  defend  the  Nation  and  raise  money 
for  that  purpose.  Now,  this  general  wel- 
fare phrase  is  usually  misunderstood.  It 
is  spoken  of  as  if  there  were  a  power  given 
Congress  to  pass  any  law  that  is  for  the  gen- 
eral welfare  of  the  United  States.  Nothing 
of  this  kind  is  in  the  Constitution.  The 
only  mention  of  "general  welfare"  is  that  all 
taxes  must  be  for  the  general  welfare  of  the 
United  States;  and  this,  as  you  know,  is  an 
old  English  Constitutional  principle. 

The  next  National  power  is  the  usual 
sovereign  right  to  borrow  money,  to  create 
a  National  debt,  and  also,  of  course,  to  coin 
money,  regulate  weights  and  measures,  and 
provide  against  counterfeiting.  Then,  Con- 
gress has  the  necessary  National  power  of 
declaring  war;  this  is  given  to  Congress,  and 
to  Congress  alone,  not  to  the  Executive. 
This  is  also  true  in  England;  but  the  Pres- 
ident has  far  more  power  in  this  particular 
than  has  the  King  of  England,  for  the  Pres- 
ident can  provoke  a  war.  He  can,  for 
159 


THE  AMERICAN  CONSTITUTION 

instance,  mass  the  army  on  the  frontier,  or 
order  the   navy  on   a  minatory  expedition. 
This  even  the  King  of  England  could  not  do. 
Our  President  is  Commander-in-Chief;  not 
so  the  King.    With  the  power  to  declare  war 
goes,  of  course,  the  power  to  support  armies 
and  navies;  and  this  is  also  given  to  Con- 
gress  exclusively,   as   it   is   in   England   to 
Parliament, — to  make  rules  for  the  Govern- 
ment of  the  army  and  navy,  to  provide  for 
calling  forth  the   State   Militia   to  execute 
the    laws    of   the    Union    when    necessary. 
This    is    the   only   case   where,   under   the 
Federal  Constitution,  the  National  Congress 
can,  as  it  were,  give  orders  to  a  State;  and 
when  the  Militia  are  so  called  out.  Congress 
has  power  to  govern  them.     Then  Congress 
is  given  power  to  determine  who  shall  be 
considered    United    States    citizens.       It    is 
given  the  sovereign  power  of  issuing  patents 
to    inventors,    and    copyrights    to   authors, 
these  being  the  only  monopolies  recognized 
by  our  law.     It  has  sole  power  to  punish 
piracies  and  felonies  on  the  High  Seas,  and, 
of  course,  to  erect  and  govern  forts,  maga- 
zines, dockyards,  and  other  needful  build- 
ings  for   the  National  defence.     All  these 
1 60 


EXPRESSION  IN  THE  CONSTITUTION 

powers  you  may  fairly  call  political;  and 
now  we  come  to  only  three  of  the  seven- 
teen which  may  be  considered  domestic  or 
social.  And  it  is  certainly  a  coincidence 
that  these  two  or  three  matters,  which  form 
the  exception  to  the  general  rule  that  the 
power  of  Congress  is  purely  political,  have 
caused  more  doubt  and  led  to  more  litiga- 
tion than  all  the  rest  of  them  put  together. 
Congress  is  given  power  to  regulate  bank- 
ruptcies throughout  the  United  States.  Con- 
gress is  given  power  to  establish  post-ofhces 
and  post-roads,  and  it  has  recently  been 
seriously  advanced  that  this  simple  provi- 
sion gives  the  National  Government  the 
absolute  dominion  over  all  railroads.  And, 
finally.  Congress  is  given  power  to  regulate 
commerce  with  foreign  nations  and  among 
the  several  States.  These  last  are  the  four 
words  in  the  Constitution  now  most  dis- 
cussed, and  under  them  the  President  seems 
to  think  that  the  whole  principle  that  the 
Government's  powers  are  mainly  political 
may  be  got  rid  of.  These  words  were 
originally  put  in  the  Constitution,  not  with 
the  notion  of  giving  the  Federal  Govern- 
ment the  right  to  interfere  or  to  regulate 
i6i 


THE  AMERICAN  CONSTITUTION 

interstate  commerce,  but  for  the  purpose 
of  preventing  the  States  from  doing  so. 
Nevertheless,  they  may  technically  give  to 
Congress  the  power  to  regulate,  or  even  to 
forbid;  and  under  the  word  "commerce" 
it  is  now  proposed  to  include  not  only 
the  goods  or  commodities  actually  trans- 
ported in  interstate  commerce,  or  the  in- 
strumentalities of  transport,  steamboats  or 
trains  of  cars,  which  was  all  the  word  was 
originally  applied  to,  but  even  manufactures 
made  by  any  corporation  doing  business  in 
more  than  one  State,  or  where  the  goods 
manufactured  or  any  part  of  them  are  ulti- 
mately sold  across  State  lines.  Nor  is  this 
all.  Not  only  are  all  articles  of  commerce 
and  all  manufactures  so  to  be  controlled, 
but  even  the  persons  or  corporations  who 
own  them  and  the  laborers  or  employees 
who  make  them.  This,  we  shall  specially 
consider  in  our  last  lecture.  I  would  only 
now  call  attention  to  the  fact  that  this 
phrase,  "commerce  among  the  several 
States,"  one  of  the  only  three  phrases  in 
all  the  powers  given  to  Congress  which 
are  not  purely  political,  under  the  inter- 
pretation proposed  by  President  Roosevelt 
162 


EXPRESSION  IN  THE  CONSTITUTION 

would  alter  our  Constitution  more  radically 
than  almost  any  amendment  could  do.  It 
will  cease  to  be  purely  political,  but  will 
thrust  its  hand  between  every  man  and  his 
neighbor,  between  every  man  and  his  own 
property.  I  told  you  at  the  beginning  that 
the  English  idea  was  that  an  Englishman's 
life  and  his  liberty  and  his  worldly  goods 
lay  under  his  own  government  or  that  of 
his  neighbors,  and  under  laws  made  by 
people  in  the  same  community,  considering 
only  its  welfare,  which  laws  were  tried  at 
home  in  the  domestic  courts.  This  change 
will,  in  the  long  run,  absolutely  subvert 
that  principle.  The  States  will  lose  control 
of  most  of  their  business  affairs,  will  lose 
the  power  to  tax  their  own  enterprises,  will 
see  their  Courts  shorn  of  their  jurisdiction. 
Hardly  any  business  will  be  so  small,  so 
local,  as  to  be  left  to  the  State  Power  to 
control.  We  shall  all  be  under  the  Govern- 
ment of  Washington,  under  the  legislation 
of  Congress,  under  the  judgment  of  the 
Supreme  Court  at  Washington,  quite  as 
completely  and  much  more  hopelessly  than 
the  English  of  the  Twelfth  Century  were 
under  the  power  of  the  royal  Chief  Justice, 
163 


THE  AMERICAN  CONSTITUTION 

the  royal  Chancellor  and  the  lawmaking 
by  royal  decree  of  the  Norman  Kings. 

Of  the  judicial  branch  there  is  little  to 
say  except  that  the  common  law  must  pre- 
vail everywhere  and  that  the  Federal  Courts 
have  now,  as  they  should  have,  jurisdiction 
of  all  suits  involving  the  Federal  Constitution 
or  laws,  or  between  persons  residing  in  dif- 
ferent States,  if  either  person  wishes  it. 

Coming  lastly  to  the  Executive,  the  Pres- 
ident,— who  corresponds  to  the  English 
King.  As  I  have  already  anticipated,  he 
has  far  more  power  in  one  particular  than 
has  the  English  King.  That  is  to  say,  he 
can  make  war  or  be  the  cause  of  war.  He 
has  in  another  respect  far  more  power.  He 
can  control  the  Legislation.  Under  the 
modern  English  Constitution,  the  King,  as 
you  know,  has  no  veto.  No  King,  not  the 
popular  Edward  VH,  would  dare  to  say  no 
to  any  law  which  has  passed  Parliament. 
That  has  not  even  been  tried  since  the  reign 
of  Queen  Anne.  Never  even  by  George  III. 
Our  Executive  has  the  right  to  declare  void 
any  law  passed  by  Congress  unless  it  be 
afterwards  passed  over  his  veto  by  two- 
thirds  of  each  house,  a  thing  which  has 
164 


EXPRESSION  IN  THE  CONSTITUTION 

happened  very  few  times  in  the  history  of 
the  country.  Thirdly,  our  President  may 
make  treaties  with  the  consent  of  the  Senate. 
These  three  great  powers,  the  absolute 
command  of  the  Army  and  Navy  in  such  a 
way  that  he  may  at  any  moment  bring  on  a 
war,  limited  only  by  the  right  of  Congress 
not  to  vote  appropriations;  the  correspond- 
ing right  to  make  treaties;  and  the  right  to 
veto  legislation; — are  all  powers  which  the 
King  of  England  does  not  have.  He  shares 
with  the  King  of  England  the  right  to  name 
Ambassadors  to  foreign  countries.  He  has 
another  power  greater  than  the  King  of 
England,  however,  in  that  he  may  form  his 
own  cabinet.  The  King  has  his  forced 
upon  him  by  a  majority  of  the  House  of 
Commons.  Both  King  and  President,  when 
they  assume  office,  make  oath  that  they  will 
support  the  Constitution.  The  King  may 
still  dismiss  Parliament,  though  he  prac- 
tically never  does  so  without  a  vote  of  the 
majority.  Our  President  may  not  do  so, 
though  he  may  convene  Congress  at  any 
time.  Our  President  may  be  impeached. 
The  English  King  may  still  be  deposed  by 
Parliament,  and  if  they  deem  wise,  put  to 
165 


THE  AMERICAN  CONSTITUTION 

death.  The  general  duty  of  both  is  to 
execute  the  laws,  though  our  President  has 
far  more  power  in  that  particular  than  has 
an  English  King. 

It  will  be  seen,  therefore,  that  our  Pres- 
ident has,  on  the  whole,  during  his  term  of 
office,  far  greater  powers  than  the  English 
Constitutional  King.  That  was  the  reason 
which  led  the  founders  to  regard  this  part 
of  our  Constitution  with  so  much  apprehen- 
sion. And  that  was  the  reason  which  led 
George  Washington  to  decline  election  for 
a  third  term, — an  example  which  has  been 
followed  by  all  our  Presidents  since  his  time. 


i66 


VI 


DIVISION  OF  POWERS  BETWEEN  LEGIS- 
LATIVE, EXECUTIVE,  AND  JUDICIAL; 
AND  BETWEEN  THE  FEDERAL  GOV- 
ERNMENT AND  THE  STATES 

ANALYSIS  of  the  Constitution  shows 
.  that  it  is  largely  composed  of  nega- 
tives; that  is,  what  the  Federal  Government 
may  not  do,  or  what  the  States  may  not 
do;  powers  that  are  kept  by  the  people 
in  their  own  hands  until  they  choose  to 
amend  the  Constitution.  Contrary  to  the  ^ 
apparent  impression,  the  things  reserved  to 
the  people  are  as  many  in  number  and 
greater  in  importance  than  those  delegated 
to  the  Federal  Power;  and  they  can  never 
be  lost  to  them  but  by  amendment  duly  sub- 
mitted to  the  people  or  to  the  States.  The 
people  are  the  only  judge  of  what  are  **the 
people's  rights  and  what  are  the  people's 
wrongs";  it  is  not  for  the  Executive  to 
judge  of  the  Constitution  or  what  is  "work- 
167 


THE  AMERICAN  CONSTITUTION 

ing  for  good  government."  Mr.  Roosevelt, 
in  his  life  of  Cromwell,  criticises  the  Pro- 
tector for  doing  this.  "Unfortunately,"  he 
says,  *' Cromwell  made  the  mental  reserva- 
tion that  he  should  be  himself  the  ultimate 
judge  of  what  good  government  was." 

Of  the  powers  of  the  several  departments, 
the  Legislative  is  first  in  importance,  but 
the  Executive,  the  President,  has  on  the 
whole  distinctly  more  power  than  the  King, 
though  for  only  a  term  of  years.  The  feeling 
that  the  President  was  given  too  great  power 
was  very  strong  among  the  founders  of  the 
United  States,  and  for  that  reason  Wash- 
ington set  the  example  of  declining  a  third 
term.  I  quote  from  Roosevelt's  life  of 
Cromwell  again,  *'The  plea  that  the  safety 
of  the  people  and  of  the  cause  of  righteous- 
ness depended  upon  his  unchecked  control 
is  a  plea  always  made  in  such  cases,  and 
generally  without  any  basis  in  fact.  .  .  . 
It  was  infinitely  more  essential  to  the  salva- 
tion of  the  nation  that  Lincoln  should  be 
continued  in  power  than  it  was  to  the  sal- 
vation of  the  Commonwealth  in  1654  that 
Cromwell  should  be  continued  in  power. 
Lincoln  would  have  been  far  more  excusable 
168 


DIVISION  OF  POWERS 

than  Cromwell  if  he  had  insisted  upon  keep- 
ing control,  yet  such  a  thought  never  entered 
Lincoln's  head.  ...  So  he  (Cromwell)  lost 
the  right  to  stand  with  men  like  Washington 
and  Lincoln  of  modern  times  and  with  the 
very  few  who,  in  some  measure,  approached 
their  standard  in  ancient  times." 

The  Judicial  branch  has  really  no  power 
at  all,  in  the  sense  of  political  power;  its 
sole  great  duty  is  to  guard  the  Constitution 
of  the  United  States,  to  hold  the  balance 
even  between  the  Executive  and  the  Con- 
gress, or  between  the  States  and  the  Nation. 

What  is  the  exact  division  of  all  these 
powers  between  the  States  and  the  Nation  ? 
.and  what  exactly  is  that  group  of  most  im- 
portant matters  which  still  remains  reserved 
to  the  people  .?  For  this  purpose  it  is  possi- 
ble to  draw  a  chart  which  shall  exactly  show 
the  state  of  things  at  a  glance  (see  Frontis- 
piece.) Our  whole  sphere  or  circle  will  rep- 
resent all  possible  powers  of  a  free  and 
sovereign  Nation,  political,  executive,  legis- 
lative. Zone  "A"  represents  those  powers 
which  are  allowed  to  the  Federal  Govern- 
ment, and  zone  "B,"  those  powers  which 
are  allowed  to  the  States;  where  the  two 
169 


THE  AMERICAN  CONSTITUTION 

zones  cross,  so  that  a  small  area  is  covered 
by  both,  we  shall  have  *'AB";  that  is  to 
say,  those  powers  which  can  be  exercised 
both  by  the  States  and  by  the  Federal  Gov- 
ernment. There  are  many  such  in  fact, — 
notably  the  great  realm  of  taxation — but 
there  is  only  one  or  two  instances  expressly 
so  stated  in  the  Constitution.  These  blue 
zones — "A"  and  *'B" — are  all  the  powers 
permitted  to  our  Governments  by  the  peo- 
ple who  set  them  up;  and  if  our  whole  sphere 
represents  all  possible  legislative  power,  it  is 
perhaps  a  rough  approximation  to  say  that 
these  two  zones  "A"  and  *'B,"  what  may 
be  done  by  the  Nation  and  what  may  be 
done  by  the  States,  represent  the  great  bulk 
of  legislative  power  as  it  has  been  hitherto 
understood  in  constitutional  countries.  It 
does  not,  on  the  other  hand,  permit  any 
principle  that  is  not  republican  in  form,  or 
possibly  anything  destructive  of  private 
property,  liberty  or  the  other  natural  rights. 
All  these  matters,  with  the  various  political 
powers  that  are  withheld  from  the  Federal 
Government  or  from  the  States  respectively, 
will  find  a  place  in  the  opposite  red  zones, 
"X"  and  "Z."  Let  us  call  what  is  for- 
170 


DIVISION  OF  POWERS 

bidden  to  the  United  States  "X"  and  draw 
that  zone  directly  opposite  to  the  zone  of 
things  permitted  to  the  United  States.  In 
the  same  manner,  let  us  call  these  things 
which  are  forbidden  to  the  States  zone  *'Z," 
in  the  part  of  the  circle  opposite  to  zone 
*'B."  We  shall  again,  in  like  manner  as 
before,  have  a  certain  section  or  realm 
where  the  two  zones  "X"  and  "Z"  cross, 
and  this  part  of  our  circle  will  exactly  rep- 
resent all  those  powers  or  things  which  are 
forbidden  both  to  the  States  and  to  the  Na- 
tion. Those  powers,  by  inference,  still  re- 
main with  the  people;  but  there  are  certain 
other  matters  which  are  expressly  reserved 
to  the  people,  which  fall  in  the  centre  of  our 
circle  "Y" — properly  left  white — that  part 
of  the  sphere  of  power  which  has  not  been 
covered  by  any  of  our  delegations  of  power 
as  we  have  drawn  them  on  the  chart. 

Not  only  does  this  diagram  show  the 
exact  relation  of  all  the  powers  at  a  glance, 
but  it  well  indicates  still  finer  shades  of 
meaning.  That  is  to  say,  the  area  marked 
**A"  simply  represents  those  matters  or  pow- 
ers delegated  in  the  Federal  Constitution  to 
the  Federal  Government,  without  anyexpres- 
171 


THE  AMERICAN  CONSTITUTION 

sion  in  the  Constitution  itself  whether  they 
are  for  that  reason  forbidden  to  the  States. 
The  Constitution  is  merely  silent  on  that 
point.  This  matter  has  been  left,  therefore, 
to  court  decision  and  common  sense.  But 
we  have  the  other  end  of  zone  *' A,"  section 
"AZ,"  where  the  zone  of  powers  forbidden 
to  the  States  crosses  that  of  the  powers  al- 
lowed to  the  United  States,  so  whatever  we 
put  in  this  zone  exactly  represents  those 
powers  which,  in  the  Constitution,  are  dele- 
gated by  the  people  to  the  United  States, 
and  at  the  same  time  expressly  forbidden  to 
the  States — this  is  the  field  of  Centralization, 
of  Imperialism.  And  the  same  thing  is  true 
of  the  powers  permitted  to  the  States  or  left 
with  them.  There  are  some  that  are  simply 
permitted  to  the  States,  without  more,  "  B," 
and  these  may  perhaps  be  exercised  also  by 
the  Federal  Government.  That  has  been 
matter  again  for  court  decision  and  com- 
mon sense.  But  the  other  end  of  zone  *'  B," 
where  the  zone  of  things  forbidden  the 
Federal  Government  crosses  the  zone  of 
things  allowed  to  the  States,  we  have  divi- 
sion *'BX,"  that  is,  powers  which  are  left 
with  the  States  and  expressly  forbidden  to 
172 


DIVISION  OF  POWERS 

the  Federal  Government.  We  have,  there- 
fore, nine  grand  divisions,  and  the  central 
one  *' Y,"  represents  most  of  what  we  were 
talking  of  in  our  earlier  lectures — the  car- 
dinal rights  of  the  people. 

Now  just  how,  in  fact,  are  all  possible 
powers  of  government  or  of  legislation  to 
be  divided  under  our  Constitution  .?  This 
is  what  the  people  call  the  study  of  States' 
rights,  and  I  think  it  is  likely — so  important 
is  it — to  be  the  principal  political  issue  of 
the  next  century.  We  must  not  be  preju- 
diced against  the  term  "States'  rights,"  be- 
cause we  associate  the  use  of  the  phrase 
with  secession;  the  States  never  had  a  right 
to  secede,  for  the  States  did  not  make  the 
Federal  Government;  the  people  did.  The 
constitutional  falsity  of  the  right  to  secede 
was  established  by  the  War  of  the  Rebellion. 
Let  us  therefore  approach  the  problem  with- 
out prejudice,  in  a  fair  and  honest  way,  re- 
membering both  what  our  founders  desired, 
what  their  difficulties  were,  and  what  the 
lesson  of  the  past  history  of  the  English 
people  teaches  us.  Let  us  remember  that  to 
deny  a  right  to  State  or  Nation  because  the 
people  wish  to  retain  it  to  themselves  is  not 

^73 


THE  AMERICAN  CONSTITUTION 

in  the  least  a  narrow  or  unpatriotic  con- 
^^  struction  of  our  Constitution.  I  have  failed, 
indeed,  if  I  have  not  shown  you  that  when 
our  ancestors  made  this  Nation,  they  did  it 
with  the  express  intent  of  not  giving  to  the 
government  they  were  creating  all  powers 
which  have  been  enjoyed  by  other  sovereign 
_  governments.  It  was  a  wonderful  and  tre- 
mendous experiment  for  that  reason.  They 
desired  to  establish  a  republican  form  of 
government;  and  they  did  not  intend  to 
give  to  their  government  any  royal  or  im- 
perial powers,  or  any  right  to  play  the  part 
that  had  been  played  by  conquering  kings 
in  earlier  centuries.  To  say,  therefore,  that 
a  power  is  denied  to  the  Federal  Govern- 
ment, may  merely  mean  that  they  held  the 
liberties  of  the  people  more  sacred,  and  the 
power  itself  dangerous;  and  probably  in  all 
such  cases  the  history  of  times  past  will  jus- 
tify it.  For  every  one  of  the  powers  so  re- 
fused the  Federal  Government  is  a  power 
which,  in  the  centuries  behind  us,  has  proved 
dangerous  to  the  liberties  of  the  English 
people  when  enjoyed  by  the  King  or  a 
centralized  government. 

Let  us  take  up  first  what  is  permitted  to 
174 


DIVISION  OF  POWERS 

the  United  States.  We  have  necessarily  in 
part  anticipated  some  of  these  matters  in 
our  last  chapter.  What  the  people  of  the 
United  States  delegated  by  their  Constitu- 
tion to  the  Federal  Government  in  1789  is 
represented  in  our  chart  by  zone  **A";  and 
that  part  of  those  powers  which  they  gave 
to  the  United  States  and  at  the  same  time 
prohibited  to  the  States,  "AZ,"  represents 
exactly  the  National  powers  of  the  American 
Government.  That  is  to  say,  only  those 
things  which  are  both  given  to  the  Federal 
Government  and  forbidden  to  the  States  or 
to  the  people,  are  powers  which  the  United 
States  really  enjoys  in  its  National  sovereign 
capacity.  We  will  therefore  take  these  first. 
In  this  segment  of  a  zone,  "AZ,"  must  lie 
all  the  National  powers  which  the  Central 
Government  can  constitutionally  exercise. 
Both  Congress  and  President,  to  read  their 
title  clear  to  anything  they  wish  to  do  or 
any  law  they  wish  to  enact,  have  got  to  find 
its  authority  given  by  the  people  in  those 
clauses  of  the  Constitution  which  I  shall  now 
enter  in  this  section.  Substantially  all  pow-  4^ 
ers  of  legislation  that  are  given  Congress  are 
found  in  Section  8  of  Article  1,  and  they 
175 


THE  AMERICAN  CONSTITUTION 

number  17.  They  are  all,  except  three  or 
four,  political  powers;  being  the  usual  polit- 
ical powers  that  are  enjoyed  by  independent 
and  sovereign  nations;  although  nothing  is 
expressly  said  about  the  acquisition  of  terri- 
■^  tory.  Congress  is  given  power  to  declare 
war;  and  the  annexation  of  territory  must 
be  justified,  under  those  three  words,  as  a 
necessary  power  resulting  from  the  right  to 
make  treaties  of  peace,  which,  of  course,  is 
included  in  the  right  to  declare  war.  A  usual 
consequence  of  treaties  having  been  ac- 
quisition of  money  or  territory,  our  Supreme 
Court  has  upheld  the  action  of  Congress  in 
.  acquiring  territory  in  this  manner. 
^  Congress  is  given  power  to  borrow  money 
-'  on  the  credit  of  the  United  States;  and 
probably  this  must  be  done  only  for  the 
debts  or  needs  of  the  United  States,  not,  as 
was  recently  done,  in  the  interest  of  private 
business.  Congress  only  may  establish  an 
uniform  rule  of  naturalization,  the  making 
of  foreigners  into  citizens.  It  alone  may 
establish  a  national  bankruptcy  law.  It 
alone  may  coin  money,  regulate  weights  and 
measures,  and  provide  for  counterfeiting. 
It  alone  may  establish  post-offices  and  post 
176 


DIVISION  OF  POWERS 

roads,  but  probably  only  for  the  purposes  of 
post  roads,  not,  as  was  recently  proposed,  to 
use  this  as  the  entering  wedge  for  the  direct 
control  of  the  entire  railroad  system  of  the 
United  States.  It  may  create  monopolies 
for  new  inventions  or  copyrights  only,  and 
for  a  limited  time.  It  may,  at  its  own 
pleasure,  erect  courts  inferior  to  the  Su- 
preme Court,  but  necessarily  always  with 
appeal  to  them,  and  the  courts  must  always 
proceed  according  to  the  common  law,  with 
jury  trial,  and  have  the  necessary  judicial 
powers  of  all  courts;  it  is  doubtful,  there- 
fore, whether  their  right  of  punishment  for 
contempt  may  be  interfered  with;  Congress 
may  choose  not  to  establish  a  court,  but 
when  it  has  done  so  it  must  be  a  court  in  the 
historical  English  sense,  and  not  the  amor- 
phous creation  of  Congress.  It  may  define 
and  punish  piracies  and  felonies  on  the  high 
seas.  It  may  provide  and  maintain  a  Navy, 
though  query  whether  a  State  may  not  do 
so  also.  It  may  make  rules  for  the  govern- 
ment of  the  Army  and  Navy,  and  for  the 
militia,  but  only  when  in  the  service  of  the 
United  States.  It  may  exercise  exclusive 
legislation  over  the  District  of  Columbia  and 
177 


THE  AMERICAN  CONSTITUTION 

places  purchased  with  the  consent  of  the 
State,  in  which  the  same  shall  be,  for  forts, 
magazines,  arsenals,  dockyards  and  other 
needful  buildings.  Without  such  consent  or 
for  any  other  purpose,  the  United  States 
Government  has  no  power  to  own,  as  a 
private  owner,  one  rood  of  land.  Finally,  it 
alone  may  declare  war. 

And  even  all  these  powers  are  not  given 
without  limitation.  For  instance,  no  army 
can  be  supported  by  the  Nation  for  more 
than  two  years  without  a  new  vote  of  the 
popular  house  of  Congress. 

Then  we  find  here  two  or  three  other 
most  important  powers  which  are  not  polit- 
ical; greatest  of  all  being  the  power  to  reg- 
ulate commerce  among  the  several  States. 
ISFearly  all  the  increase  of  National  power 
over  the  people's  affairs  that  is  now  con- 
templated is  based  upon  these  four  words. 
If  the  extremists  have  their  way,  the  In- 
terstate Commerce  power  will  become  the 
means  of  remodeling,  utterly  making  over  the 
Constitution,  obliterating  its  general  great 
division  between  political  and  social  or  do- 
mestic powers  or  laws,  and  taking  away  the 
ordinary  business  affairs  of  the  people  from 
178 


DIVISION  OF  POWERS 

their  home  courts  and  from  State  laws  and 
placing  them  with  the  political  powers  un- 
der the  control  of  the  Federal  Government. 
This,  therefore,  is  one  of  the  two  or  three 
principles  that  are  going  to  be  most  important 
for  us,  in  the  future,  rightly  to  determine. 

We  next  come  to  Clause  i8,  which  has 
been  almost  as  much  discussed  as  the  Inter- 
state Commerce  Clause.  This  is  the  only 
general  grant,  of  legislative  power  to  Con- 
gress. All  other  matters  are  specific.  But 
at  the  end  of  all  these  specific  powers,  Con- 
gress, by  this  clause,  is  given  a  general 
authority  *'To  make  all  laws  which  shall  be  v 
necessary  and  proper  for  carrying  into  execu- 
tion the  foregoing  powers  and  all  other  pow- 
ers vested  by  this  Constitution  in  the  United 
States  or  any  department  or  office  thereof." 
The  extreme  loose  constructionists,  the  ex- 
treme centralists,  go  to  the  length  of  saying 
that  under  this  section  Congress  can  pass 
any  act  which  they  consider  either  necessary 
or  proper  for  any  of  the  purposes  indicated 
throughout  the  Federal  Constitution;  for 
example,  because  Congress  is  given  power 
to  regulate  commerce  among  the  several 
States,  they  can,  if  they  choose,  forbid  such 
179 


THE  AMERICAN  CONSTITUTION 

commerce  entirely,  or  they  could,  on  the 
other  hand,  provide  that  all  such  commerce 
must  be  conducted  by  Federal  officers 
licensed  for  the  purpose,  or  by  corporations 
with  a  Federal  charter.  Or  even  that  the 
goods  transported  should  be  manufactured 
under  the  Federal  Government's  notions  of 
what  is  right  and  wrong.  The  Democrats, 
on  the  other  hand,  have  always  maintained 
that  these  words  "necessary  and  proper" 
should  be  read  as  written.  They  mean  both 
necessary  and  proper;  and  of  that  necessity 
not  Congress  which  makes  the  law,  but  the 
Courts  shall  judge.  The  Supreme  Court  in 
its  decisions  has  taken  a  middle  ground. 
While  not  holding  that  a  law  must  be  both 
proper  and  necessary,  they  do  hold  that  a 
law  must  be  proper  in  their  sight,  and  also 
reasonably  adapted  to  the  end  proposed. 
That  is  to  say,  if  the  courts  can  see  on  the 
face  of  a  law  that  although  not  the  best 
possible  method,  it  is  still  a  method  fairly 
applicable  to  the  object  proposed,  they  will 
sustain  the  law  under  this  power. 

But  now  in  all  these  matters  also  comes 
another  question,  whether  they  should  fall 
in  our  class  "A,"  or,  as  we  have  placed 
1 80 


DIVISION  OF  POWERS 

them,  in  our  class  '' hZ''  ?  I  have  put  them 
all  in  *'AZ,"  although  often,  as  with  inter- 
state commerce,  it  has  been  held  that  a 
certain  power  of  regulation  is  left  with  the 
States,  at  least  until  Congress  chooses  to 
interfere.  When  there  is  a  National  law  on 
the  subject,  the  State  law  must  give  way; 
and  the  same  thing  is,  of  course,  true  in  the 
matter  of  bankruptcies.  Our  State  insol- 
vency laws  are  suspended  while  and  when 
the  Nation  has  a  national  bankruptcy  act. 
There  is  no  doubt,  however,  that  a  State 
cannot  declare  war,  or  regulate  commerce 
with  foreign  nations,  or  borrow  money  on 
the  credit  of  the  United  States,  or  establish 
rules  for  naturalization,  or  coin  money.  We 
conclude,  therefore,  that  these  seventeen  leg- 
islative powers  given  to  Congress  are  usu- 
ally exclusive;  that  is  to  say,  they  leave  no 
power  with  the  States  to  legislate  on  those 
subjects;  certainly  not,  when  Congress  has 
passed  an  act. 

The  next  great  subject  of  National  power  \e\ 
is,  of  course,  the  Executive  power  generally 
(II,  2).  The  Executive  power  of  the  United 
States  is  vested  in  the  President.  In  sub- 
stance he  has  the  power  and  the  duty  of 
181 


THE  AMERICAN  CONSTITUTION 

executing  the  laws;  he  appoints  all  National 
officers;    he  is  Commander-in-chief  of  the 
Army  and  Navy;    and  he  generally  has  the 
powers  of  a  constitutional  British  King  ex- 
cept in  so  far  as  those  powers  are  taken 
from  him  in  other  parts  of  the  Constitution 
and  entrusted  to  other  bodies.     He  cannot 
declare  war,  but  he  may,  with  the  consent 
^of  two-thirds  of  the  Senate,  make  a  treaty. 
And  at  this  clause  we  find  our  first  instance 
of  usurpation  of  powers  by  Congress  or  by 
one  branch  of  Congress.     The  President  is 
given  power  to  make  treaties,  and  the  inten- 
tion of  the  Constitution  clearly  is  that  that 
power  shall  be  full  and  merely  be  confirmed 
by  the  Senate  in  the  ordinary  way  that  other 
executive  acts  are  confirmed.     That  is  to 
say,  they  have  no  business  to  interfere  with 
the  President  in  his  negotiations  of  a  treaty, 
and  they  ought  to  confirm  it,  when  nego- 
tiated, unless  there  is  really  some  serious 
objection.     Nevertheless,    the    Senate    has 
taken  it  upon  itself  practically  to  arrogate 
unto  itself  the  whole  right  of  treaty-making 
power.     You  will  remember  that  they  dis- 
approved a  very  important  arbitration  treaty 
with  England  made  by  Secretary  Hay;  they 
182 


DIVISION  OF  POWERS 

have  refused  reciprocity  treaties  negotiated 
under  McKinley  and  others;  they  have  op- 
posed treaties  about  Newfoundland  and 
Canada;  and  they  have  assumed  such  an 
attitude  in  relation  to  San  Domingo  as  to 
make  it  necessary  for  President  Roosevelt 
to  go  ahead  alone.  It  is  not  too  much  to  say 
that  it  is  almost  impossible  for  a  President, 
however  intelligent  and  patriotic,  to  get  a 
treaty  confirmed  against  which  a  small  body 
of  Senators  have  any  objection.  This,  there- 
fore, is  a  clear  case  of  usurpation  of  con- 
stitutional power  by  the  Senate. 

Substantially  the  only  limitations  on  the 
President's  executive  power  are  that  he 
may  not  prevent  the  Houses  of  Congress 
from  assembling,  nor  may  he  adjourn  them 
when  assembled  (but  he  has  the  power  to 
call  them  in  special  session);  that  he  must 
be  a  natural-born  citizen;  and  that  he  must 
make  oath  to  support  the  Constitution  of 
the  United  States.  Finally,  he,  with  all  other 
civil  officers,  may  be  removed  from  office 
by  impeachment. 

The  judicial  power  of  the  Federal  Gov- 
ernment  falls   usually   in   our  zone  **AZ." 
But   there  are  many    restrictions,  in   "X." 
i8i 


THE  AMERICAN  CONSTITUTION 

You  remember  how  important  a  part  this 
was  of  the  EngHsh  Kings'  prerogative, — how 
the  Norman  Kings  almost  destroyed  the 
liberties  of  the  people  by  removing  the 
judicial  power  from  their  own  common  law 
courts  and  centralizing  it  with  the  Chancellor 
or  the  King's  Court  at  London,  where  cases 
both  civil  and  criminal  could  be,  and  in 
j^  fact  were,  tried  without  a  jury.  Well,  we 
have  protected  against  this  latter  danger 
(Amendment  VII)  by  providing  that  no  case 
removed  to  a  Federal  Court  shall  ever  be 
tried  except  under  the  common  law,  and  we 
have  further  provided  (Art.  Ill,  2)  that  the 
trial  of  all  crimes  must  be  by  jury  and  be 
held  in  the  State  where  the  crimes  were 
committed,  even  if  tried  in  a  Federal  court. 
We  have,  however,  given  the  National  Courts 
authority  to  determine  all  cases  arising 
under  the  Constitution  or  a  Federal  law 
("AZ"),  and  we  have  furthermore  provided 
that  the  Federal  Courts  may  try  all  cases 
"between  citizens  of  different  States"  ("A" 
or  "AB").  Now  these  five  words,  like  the 
four  words  of  the  Interstate  Commerce 
Clause,  have  caused  and  are  causing  a 
change  in  the  relations  of  the  Nation  to  the 
184 


DIVISION  OF  POWERS 

State,  probably  unforeseen  by  our  ancestors. 
In  those  days,  suits  between  citizens  of 
different  States  were  comparatively  rare. 
People's  business  rarely  extended  beyond 
State  lines.  To-day  it  nearly  always  does, 
even  in  the  case  of  individuals.  Moreover, 
nowadays,  the  great  bulk  of  the  business  of 
the  country  is  done  by  corporations;  and 
though  corporations  still,  nearly  all,  work 
under  State  charters,  it  by  no  means  happens 
that  the  charters  are  given  in  the  State  where 
it  does  business.  On  the  contrary,  a  busi- 
ness corporation  doing  business  in  Boston 
or  New  York  is  quite  as  likely  to  be  a  cor- 
poration of  the  State  of  Maine,  or  West 
Virginia,  or  New  Jersey,  as  of  the  State 
where  it  really  is  situated.  The  conse- 
quence is  that  a  vast  mass  of  transactions, 
and  the  great  majority  of  business  law  suits 
is  growing  to  be  between  parties  who  are 
technically  of  different  States,  and  this  state 
of  things  has  transferred  the  great  bulk  of 
business  from  the  State  to  the  Federal 
Courts.  And  if  the  President's  proposal  to 
have  all  large  corporations  take  out  a  Federal 
charter  were  to  pass  into  law,  this  would  be 
almost  universal,  and  any  dispute  or  busi- 
185 


THE  AMERICAN  CONSTITUTION 

ness  involving  a  corporation — and  nearly  all 
business  would  in  fact  be  conducted  by  cor- 
porations in  such  a  case — would  be  removed 
from  the  State  Courts  to  be  tried  in  the 
Federal  Courts. 

Still,  the  Federal  Government  has  no 
power  directly  to  interfere  with  the  States 
except  if  they  fail  to  maintain  a  republican 
form  of  government  and  except  also  (Art. 
IV,  Sec.  i)  that  full  faith  and  credit  shall 
be  given  in  each  State  to  the  public  Acts, 
records,  and  judicial  proceedings  of  every 
other,  and  that  Congress  may  pass  laws 
carrying  this  provision  into  effect  (*'A"). 
Finally,  in  Art.  IV,  Sec.  3,  is  the  great 
phrase  on  which  the  expansion  of  the  Nation 
is  now  proceeding.  Congress  has  power  to 
admit  new  States  into  the  Union  ("AZ"), 
though  it  may  not  alter  the  boundaries  of 
old  States  without  their  consent  ("X"  or 
*'AB"),  and  in  the  same  section  Congress  is 
given  power  to  make  "all  needful  rules  and 
regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States" 
C'AZ").  On  these  two  commandments 
hang  all  the  law  and  profits  of  imperialism. 
Nothing  is  said  about  the  territory  from 
186 


DIVISION  OF  POWERS 

which  new  States  may  be  admitted,  and 
there  is  no  doubt  that  the  founders,  at  least 
in  this  section  of  the  country,  thouglit  it 
was  Hmited  to  the  territory  acquired  from 
England  in  the  Revolution.  That  notion 
was  disposed  of  by  Thomas  Jefferson  in  his 
acquisition  of  Louisiana.  Still  it  was  per- 
haps thought  until  recently  that  the  power 
to  acquire  new  territory,  certainly  to  make 
new  States  out  of  it,  was  limited  to  the  con- 
tinental territory  of  North  America. 

Government  of  all  such  territory  before 
it  is  made  into  States  is  based  on  the  second 
clause  of  the  Article,  that  Congress  may 
make  needful  rules  concerning  it.  Whether 
those  "needful  rules"  include  the  withhold- 
ing of  the  Constitution,  or  the  administering 
of  the  Constitution  in  such  small  doses  as 
it  may  deem  healthy  for  the  patient,  is  a 
matter  still  in  discussion,  and  not  perhaps 
yet  settled.  One  portion  of  the  Constitution 
at  least  must  "  follow  the  flag" — the  Thir- 
teenth Amendment,  for  it  says  in  so  many 
words  that  it  applies  to  any  place  subject 
to  the  jurisdiction  of  the  United  States. 

So  much  for  the  Federal  powers  given  to 
the  Federal  Government  in  the  Constitu- 
187 


THE  AMERICAN  CONSTITUTION 

tion  and  forbidden  to  the  States.    The  great 
Fourteenth  Amendment,  though,  which  was 
passed  after  the  Civil  War,  added  one  tre- 
mendous  principle.     Passed   in   theory   to 
protect  the  negroes  in  the  South,  it  practi- 
cally gave  a  new  bill  of  rights  to  all  the  citi- 
zens of  the  United  States  and  gave  the  Fed- 
eral Government  the  power  to  prevent  the 
States  from  passing  laws  in  contradiction 
therewith.     That  is  to  say,  while  the  States 
already  by  their  own  Constitutions  adopted 
the  cardinal  principle  of  the  Bill  of  Rights, 
that  life,  liberty,  or  property  could  not  be 
taken   away  without   due   process   of  law, 
by  the  Fourteenth  Amendment  the  United 
States  Government  was  empowered  also  to 
guarantee  this  to  all  United  States  citizens, 
and  even  as  against  the  States;   so  that  the 
people  in  their  important  liberty  and  prop- 
erty rights  have  now  not  only  the  guaranty 
of  their  own  State  Constitutions,  as  State 
citizens,  but  of  Section  i  of  the  Fourteenth 
Amendment,  as  United  States  citizens,  which 
puts,  as  it  were,  the  whole  authority  of  the 
Federal  Government  also  behind  the  cardi- 
nal proposition  that  no  State  shall  deprive 
any  person  of  life,  liberty,  or  property  with- 


DIVISION  OF  POWERS 

out  due  process  of  law,  nor  deny  to  any 
person  the  equal  protection  of  the  laws. 

The  things  forbidden  to  the  States  simply  ^ 
("Z"),  are  generally  those  National  political 
powers  which  were  reserved  to  the  Nation 
in  our  division  "A,"  matters  concerning  na- 
tional taxation,  revenue,  defence,  and  the 
control  of  commerce  among  the  States.  The 
States  are  forbidden  (I,  2)  to  make  their 
elections  for  members  of  Congress  less 
popular  than  for  the  lower  house  of  the 
State  Legislature.  In  the  next  clause  they 
are  forbidden  to  elect  to  Congress  a  man 
who  has  not  been  for  seven  years  a  citizen 
of  the  United  States;  but  the  great  clause 
that  goes  into  "Z"  is  Art.  I,  Sec.  10:  No 
State  shall  enter  into  any  treaty,  alliance,  or 
confederation,  grant  letters  of  marque,  coin 
money,  issue  paper  money,  etc.,  with  the 
same  broad  guaranties  of  human  liberty,  as 
to  bills  of  attainder,  ex  post  facto  laws,  etc., 
that  we  found  forbidden  also  to  the  Federal 
Government.  Then,  in  the  next  clause, 
they  cannot  lay  duties  on  imports  or  exports 
nor  impose  tonnage  duties,  nor  keep  troops 
or  ships  of  war,  or  engage  in  war  un- 
less actually  attacked.  They  are  forbid- 
189 


THE  AMERICAN  CONSTITUTION 

den  (IV,  i)  not  to  give  full  credit  to  the 
public  acts  and  court  decisions  of  other 
States;  and  (Sec.  2),  not  to  extend  to  the 
citizens  of  other  States  all  the  privileges  they 
extend  to  their  own  citizens.  Finally,  there 
are  the  great  provisions  of  the  Fourteenth 
Amendment  we  have  discussed  above. 
^  Perhaps  the  next  logical  thing  is  to  take 
^  what  is  forbidden  to  the  United  States.  This 
zone  we  mark  "  X '' — red,  horizontal  lines 
— and  it  has  the  modifications  of  "  BX,"  per- 
mitted to  the  States  and  forbidden  to  the 
Federal  Government,  and  "ZX,"  forbidden 
to  both  the  States  and  the  Federal  Govern- 
ment. Taking  the  plain  restrictions  first, 
■^  they  have  been  somewhat  anticipated.  Per- 
haps the  greatest  principle  is  the  insistence 
on  a  republican  form  of  government  (Art. 
IV,  4).  Art.  I,  Sec.  2,  the  House  of  Repre- 
sentatives (corresponding  to  the  House  of 
Commons  in  England)  is  to  be  chosen  every 
second  year  by  the  people  of  the  States.  In 
the  same  section,  third  paragraph,  is  the  ex- 
traordinary withholding  of  the  power  of 
direct  taxes  from  the  Federal  Government. 
This  I  have  adverted  to.  Direct  taxes  being 
most  distinctly  a  sovereign  power,  their  pro- 
190 


DIVISION  OF  POWERS 

hibition  to  the  Federal  Government  shows 
how  httle  of  a  sovereign  the  framers  in- 
tended that  to  be.  Section  4  provides  that 
Congress  must  assemble  at  least  once  a 
year,  thus  even  oftener  than  the  House  of 
Commons,  which,  in  the  time  of  Cromwell, 
was  established  for  three  years,  though  it 
actually  now  meets  every  year. 

The  usual  constitutional  privilege  of  free- 
dom from  arrest  and  freedom  of  debate  is 
extended  in  Section  6,  and  the  members  of 
the  Legislative  body  are  forbidden  from 
holding  salaried  offices  in  the  United  States. 
Section  7  copies  the  English  constitutional 
provision  that  money  bills  must  be  started 
by  the  popular  house;  and  here  we  find  a 
second  great  usurpation  of  our  Upper  House. 
This  clause  of  the  Constitution  intended  to 
adopt  the  English  principle,  founded  and 
fought  for  for  many  centuries,  that  taxation 
bills  should  be  made  by  the  people  through 
their  representatives  and  should  only  be  in- 
troduced in  the  Lower  House,  as  in  England, 
they  can  only  be  introduced  by  the  House  of 
Commons.  Here,  of  late  years,  under  the 
fiction  of  amendments,  the  Senate  has  ar- 
rogated to  itself  the  lion's  share  of  the 
191 


THE  AMERICAN  CONSTITUTION 

power  of  taxation  and  appropriation.  Every 
year  there  is  a  struggle  on  this  point. 
The  House  originates  all  appropriations  in 
what  is  called  the  General  Appropriation 
Bill.  In  the  same  way  they  originate  all 
tariff  acts — the  Wilson  Tariff,  for  instance, 
under  Cleveland — but  when  such  bills  go 
to  the  Senate  they  are  amended  and  altered 
to  such  an  extent  that  the  Senate  might  as 
well  strike  out  all  but  the  enacting  clause. 
The  greater  power  and  discipline  of  the 
Senate  make  this  possible.  The  House  is 
ruled  by  majority  vote,  at  least  when  the 
Speaker  permits  it;  but  the  Senate  is  prac- 
tically ruled,  that  is,  legislation  may  be 
blocked  by  the  will  of  one  Senator;  more- 
over, the  Senate  has  continuity,  in  that  only 
one-third  of  its  members  can  change  at 
any  Congress,  while  practically  seats  in  the 
Senate  are  held  for  life,  except  in  rare  in- 
stances. So  here  we  note  another  invasion 
of  constitutional  right,  this  time  again  by 
the  Senate,  on  the  will  of  the  people  as  ex- 
pressed in  the  Constitution. 

Section  8  provides  that  taxes  must  be  uni- 
form.    The  Federal  Government   (Section 
9)  is  forbidden  to  suspend  the  writ  of  habeas 
192 


DIVISION  OF  POWERS 

corpus,  to  pass  bills  of  attainder,  to  impose 
export  taxes,  and  to  prefer  one  port  or  the 
ports  of  one  State  over  those  of  another. 
Money  can  only  be  paid  out  on  appropria- 
tions and  expended  for  the  purpose  indicated, 
and  titles  of  nobility  are  forbidden.     Article 
III  incorporates  the  great  provision  of  the 
English  Constitution  that  judges  must  hold 
their  office  during  good  behavior  for  a  fixed 
compensation.     I  told  you  how  a  Missouri 
Congressman  had  introduced  a  bill  that  all 
judges  should  be  removable  at  the  will  of 
the  President.     This  would,  of  course,  re- 
quire an  amendment  to  the  Constitution, 
and  the  people  will  be  far  too  intelligent  to 
consent  to   it.     Mr.    Bryan,   however,   has 
proposed  that  all  Federal  judges  should  be 
elected  and  not  appointed  by  the  President. 
The  wisdom   of  this  may   be    questioned. 
Nominations  by  the   people   for  judges  or 
minor  offices  have  not,  in  our  history,  been 
nearly  so  intelligent  as  their  nominations  for 
the  President.    We  have  had  very  few  Presi- 
dents whose  nomination  of  high  judges  we 
might  not  trust  rather  than  the  chance  of 
political  caucuses.     And  if  Mr.  Bryan  pro- 
poses to  do  away  with  the  life  tenure  of  Fed- 
193 


THE  AMERICAN  CONSTITUTION 

eral  judges,  he  is  striking  at  one  of  the  most 
valuable  points  of  both  the  British  and  the 
American  Constitution,  which,  as  you  re- 
member, was  estabhshed  only  after  many 
centuries  of  struggle  against  James  I  and 
Charles,  in  the  Act  of  Settlement  after  the 
English  Revolution.  The  question  of  elec- 
tion or  appointment  does  not  so  much 
matter;  but  a  permanent  tenure  seems  es- 
sential. 

To  elect  Federal  judges,  however,  would 
require  an  amendment  to  the  Constitution, 
and  not  only  this,  but  it  would  be  difficult 
to  provide  the  machinery.  Are  judges  of 
the  Supreme  Court,  for  instance,  to  be 
elected  by  the  whole  people  of  the  United 
States  and  judges  of  the  Circuit  Courts  by 
the  people  of  the  representative  circuits  ? 
This  would  require  a  whole  machinery  of 
election  which  we  have  not  now  got.  The 
argument  against  appointment  by  the  Pres- 
ident, too,  is  based  on  a  misconception. 
Undoubtedly  the  President  fairly  represents 
the  will  of  the  people  for  the  time  being; 
and  he  has  a  perfect  constitutional  right  to 
designate  judges  of  his  own  way  of  thinking. 
I  have  sometimes  in  these  lectures  criticised 
194 


DIVISION  OF  POWERS 

presidents  for  interfering  with  the  judiciary 
or  blaming  their  decisions,  but  one  must 
frankly  recognize  the  necessity  of  appoint- 
ing judges  in  accord  with  the  prevailing 
politics  of  the  time.  We  have,  for  instance, 
embarked  on  a  national  policy  in  connec- 
tion with  the  Philippine  Islands;  whether 
rightly  or  wrongly,  the  country  is  at  present 
committed  to  it.  It  would  be  perfectly  im- 
possible for  any  President  to  appoint  a 
judge  of  the  Supreme  Court  who  he  thought 
was  likely  to  take  a  strict  constitutional  view 
of  the  case  and  insist  on  extending  habeas 
corpus,  indictments,  trial  by  jury,  and  other 
Anglo-Saxon  safeguards  to  the  people  of  the 
Philippine  Islands.  The  fact  is,  the  weap- 
ons of  English  liberty  are  meant  to  be  worn 
only  by  Anglo-Saxon  peoples,  including,  of 
course,  the  Scotch  and  Irish,  and  it  is  an 
example  of  fantastic  logic,  than  which  noth- 
ing can  be  more  dangerous,  to  insist  at  once 
on  extending  them  to  the  brown  or  yellow 
races  under  our  dominion. 

Section  2  forbids  crimes  to  be  tried  other- 
wise than  by  jury.     Section  3  defines  treason 
as  defined  by  the  modern  English  Constitu- 
tion.    Art.  V,  no  State  shall  ever  be  de- 
'95 


THE  AMERICAN  CONSTITUTION 

prived  of  its  two  senators,  even  by  amend- 
ment of  the  Constitution — this  is  the  right  of 
rebeUion  of  which  I  spoke,  both  *'X"  and 
"XZ"— and  Art.  VI   ("X"   only)   forbids 
rehgious  tests  for  office. 
j^       The  Amendments,  being  the  National  bill 
of  rights,  mainly  fall  under  the  head  we  are 
now  discussing,  plain  *'X";  that  is,  they  do 
not  control  the  States,  which  had  their  own 
guarantees.    The  first  nine  apply  only  to  the 
Federal  Government.     Art.  I  guaranteeing 
free  religion;  Art.  II,  the  right  to  bear  arms; 
Art.  Ill  forbids  the  quartering  of  soldiers. 
Art.    IV   forbids   search   warrants   without 
reasonable  cause,  and  generally  establishes 
the  right  of  a  citizen  to  the  privacy  of  his 
own    possessions.     Art.    V    makes    indict- 
ments necessary  for  a  man  to  be  tried  for 
any  crime;  forbids  his  being  tried  twice  for 
the  same  offence,  and  forbids  criminating 
evidence — that  is  to  say,  compelling  a  man 
to  be  a  witness  against  himself.     I  shall  dis- 
cuss these  two  matters  later.     This  impor- 
tant  article   also   incorporates   in   the  Na- 
tional Constitution  the  great  clause  of  Mag- 
na Charta,  that  no  one  shall  be  deprived  of 
life,  liberty,  or  property  without  due  process 
196 


DIVISION  OF  POWERS 

of  law,  and  also  that  other  section  of  Magna 
Charta  which  forbids  the  taking  of  a  man's 
property  for  public  purposes  without  just 
compensation;  and  Art.  VI  requires  a  petit 
jury  for  the  actual  trial  of  the  crime,  and 
requires  that  no  person  shall  be  detained 
without  being  told  why — this  last  being  the 
right  to  law  which  I  spoke  of  in  my  first 
lecture.  Art.  VII  requires  jury  trial  in 
civil  cases.  Art.  VIII  forbids  excessive  bail 
and  cruel  punishments.  The  eleventh  article 
of  amendment  forbids  suits  against  a  sover- 
eign State.  The  thirteenth  abolishes  slav- 
ery. The  fourteenth  establishes  the  right 
of  all  United  States  citizens  to  equal  treat- 
ment by  the  States,  despite  their  race  or 
color. 

I  have  reserved  the  most  important  to  the 
last.  This  is  the  tenth.  "The  powers  not 
delegated  to  the  United  States  by  the  Con- 
stitution, nor  prohibited  by  it  to  the  States, 
are  reserved  to  the  States  respectively  or  to 
the  people."  This  is  the  great  area  of  *' Y," 
we  have  left  white  —  virgin  still,  with  the 
people.  And  this  is  the  only  part  of  the 
Constitution  covering  infinite,  indefinite,  po- 
litical power — the  rights,  powers  and  liber- 

197 


A 


THE  AMERICAN  CONSTITUTION 

ties  reserved  to  the  people  and  to  their 
home  governments. 

It  will  be  seen  from  this  brief  survey 
that  I  was  justified  in  saying  at  the  begin- 
ning that  the  Constitution,  in  so  far  as  it 
affected  the  Federal  Government,  consisted 
mainly  of  restrictions;  while  comparatively 
few  restrictions  are  imposed  upon  the  States 
— the  general  theory  being  that  they  have 
all  legislative  powers  of  ordinary  republics. 

And  let  us  also  see  what  things  are  for- 
bidden to  both  States  and  Nation — "XZ" — 
as  this  is  most  significant;  moreover,  such 
matters,  though  the  Constitution  does  not 
expressly  say  so,  must  fall,  with  their  ex- 
pressly reserved  liberties,  in  the  people's 
domain,  *'Y."  Mainly  these  consist  in  the 
cardinal  liberty  rights — life,  liberty,  prop- 
erty, free  religion  (Amendments  5,  13,  14), 
etc.,  also  the  prohibition  of  titles  of  nobility, 
of  bills  of  attainder,  and  the  insistence  on 
a  republican  form  of  government  by  both 
the  Nation  and  the  State,  elections  of  the 
House  by  the  people  (I,  2),  the  assurance 
of  equal  rights  by  law  (Amendments  5  and 
14),  and   the   right    to   vote    (Amendment 

15)- 

198 


DIVISION  OF  POWERS 

We  now  come  to  our  zone  of  "B" — 
States'  Rights.  Very  few  things  have  to  be 
given  expressly  to  the  States,  because  the 
general  theory  is  that  they  have  all  powers 
not  expressly  parted  with.  They  are  ex- 
pressly given  control  over  their  militia. 
They  are  given  power  to  demand  extradition 
of  criminals  from  other  States;  they  are 
guaranteed  their  territorial  integrity;  they 
are  protected  against  law-suits. 

Then,  in  the  division  "  BX,"  given  to  the 
States  and  forbidden  to  the  Nation,  we  have 
the  Constitution's  own  definition  of  States' 
Rights;  the  States  are  expressly,  by  the 
Tenth  Amendment,  given  all  powers  not 
expressly  delegated  to  the  Federal  Govern- 
ment in  the  Constitution.  This  is  the  great 
right  reserved,  and  has  been  fully  discussed 
already — that  there  is  nothing  in  the  whole 
body  of  political  power  which  does  not  be- 
long to  States'  Rights  unless  it  is  expressly 
delegated  to  the  Federal  Government  in  the 
Constitution  itself.  This  provision  is  so 
broad  that  it  is  hardly  necessary  for  the 
Constitution  to  say  more.  It  does,  how- 
ever, expressly  give  a  few  things  to  the 
States  and  forbids  them  to  the  Nation.  For 
199 


THE  AMERICAN  CONSTITUTION 

instance  (I,  2),  the  right  to  elect  members 
of  the  House  of  Representatives  by  the 
people  of  the  States  and  to  have  a  number 
of  representatives  proportionate  to  their 
population;  the  right  of  State  Governments 
to  issue  writs  for  elections  to  fill  vacancies; 
(Art.  I,  Sec.  3)  the  right  to  have  two  Senators 
from  each  State  chosen  by  the  Legislature 
thereof,  each  senator  to  have  one  vote;  and 
in  the  next  clause  the  right  of  the  Governor 
to  appoint  senators  to  fill  vacancies;  (Art. 
I,  Sec.  4)  the  right  to  manage,  control  and 
fix  the  times  and  places  of  their  own  elec- 
tions, even  for  United  States  Senators;  (I, 
8,  16)  the  right  to  appoint  the  oflficers  of  their 
own  militia;  (II,  i,  2)  the  right  to  appoint 
electors  for  the  United  States  President 
even,  in  such  manner  as  the  State  Legis- 
lature direct,  not  to  be  controlled  by  the 
Federal  Government.  They  can  be  ap- 
pointed, either  by  election  throughout  the 
State  as  a  whole,  or  by  election  in  districts, 
or  even  directly  by  the  State  Legislature  it 
would  seem,  though  the  last  has  never  been 
done.  But  Michigan  and  other  States  have 
had  elections  by  districts. 

The   chief  matter  which   is   common  to 
200 


DIVISION  OK  POWER 

both  the  State  and  Nation  ("AB")  is  that 
of  taxation,  jurisdiction  of  ordinary  law- 
suits, and  the  forming  of  new  States.  States 
and  Nation  (IV,  4)  may  combine  to  repress 
domestic  violence.  They  have  to  combine 
to  amend  the  Constitution  (Art.  V),  and 
(IV,  3,  i)  to  alter  State  boundaries.  Other- 
wise there  is  no  overlapping,  and,  despite 
the  President's  opinion,  no  gaps —save  the 
great  gap  of  imperial  power  and  personal 
liberty  reserved  in  the  people. 

For,  finally,  after  we  have  divided  all  these 
powers  in  these  eight  divisions,  we  have  in 
the  centre  that  space  unoccupied  which 
perfectly  represents  those  powers  which  re- 
main in  the  people,  which  they  have  never 
granted  to  our  Federal  Government,  or 
even,  in  many  cases,  to  the  States;  rights 
still  virgin.  This  great  domain  I  have  al- 
ready anticipated.  Indeed  it  was  the  sub- 
ject of  most  of  our  early  lectures:  liberty, 
property,  equality,  the  right  to  law,  habeas 
corpus,  trial  by  jury,  local  self-government, 
popular  election,  general  suffrage.  All  these 
fundamental  things  would  fall  into  that 
division.  To  say  more  here  would  be  to 
repeat  the  first  five  lectures. 
201 


THE  AMERICAN  CONSTITUTION 

'^  But  there  are  other,  more  poHtical, 
rights  given  to  protect  the  people.  Con- 
gress must  assemble  every  year;  it  must 
have  freedom  of  speech  and  guaranty  against 
arrest;  the  House  alone  can  introduce  rev- 
enue bills.  No  armies  can  be  maintained 
for  more  than  tv^o  years.  No  direct  taxa- 
tion from  the  National  Government;  no  un- 
equal indirect  taxation  from  the  National 
Government.  No  titles  of  nobility.  Jury 
trials;  indictments;  civil  rights;  the  for- 
bidding of  all  class  legislation;  the  suprem- 
acy of  the  Constitution.  And,  finally,  after 
all  these  rights  have  been  enumerated,  the 
great  Ninth  Amendment  says  that  this  enu- 
meration, nevertheless,  does  not  deny  or 
disparage  other  rights  still  retained  by  the 
people;  the  final  and  important  thing  being 
that  the  framers  founding  this  Government 
consciously  and  expressly  did  not  intend  to 
give  general  sovereign  powers  of  conquest 
or  National  career.  Their  Government  was, 
in  theory,  a  committee,  bound  to  report  to 
its  masters  every  two  years.  This  whole 
sphere  in  our  diagram  represents,  in  a  sense, 
infinity  of  powers;  but  the  real  infinity  is  in 
the  central  sphere  of  *'Y."     All  the  other 

202 


DIVISION  OK   POWER 

divisions  are  definitely  limited  and  definitely 
controlled.  Failure  to  understand  this  is 
failure  to  understand  the  cardinal  principle 
of  our  Constitution. 


203 


VII 

CHANGES    IN    THE   CONSTITUTION   NOW 
PROPOSED 

WE  have  but  two  remaining  lectures  in 
which  to  fulfil  our  promise  of  con- 
sidering those  subjects  of  the  American  Con- 
stitution which  are  likely  to  bulk  most 
largely  in  the  popular  mind  in  the  imme- 
diate future.  First,  we  will  take  the  regula- 
tion or  control  of  corporations.  By  an  acci- 
dent of  legislation  or  policy,  the  Act  estab- 
lishing the  Department  of  Commerce  and 
Labor  authorizes  the  Commissioner  to  make 
investigations  ...  of  the  business  of  any 
(not  every  or  all)  corporation  engaged  in 
interstate  commerce;  and  by  an  Act  of 
February  25,  1903,  ^500,000  was  appro- 
priated to  enable  the  Attorney-General  to 
conduct  prosecutions  under  the  same.  Now 
the  question  of  compulsory  evidence,  pub- 
licity of  business  corporations,  and  the  im- 
munity of  those  testifying  in  such  matters, 
204. 


CHANGES  IN  THE  CONSTITUTION 

is  one  thing;  the  right  of  a  man  to  keep  his 
private  affairs  private,  to  have  his  private 
papers  sacred,  and  his  house  and  posses- 
sions inviolable,  is  quite  another,  a  valued 
liberty  right,  won  in  comparatively  modern 
times  against  the  Stuart  tyranny.  Indeed 
one  of  these  rights — that  a  man's  house  and 
papers  should  not  be  searched  without  a 
special  warrant  stating  the  cause — was,  we 
may  say,  invented  in  Massachusetts.  The 
Writs  of  Assistance,  which  allowed  general 
perquisition,  were  a  great  abuse  at  the  time 
that  General  Gage  was  stationed  in  Boston. 
In  an  impassioned  speech,  James  Otis  ob- 
jected to  them,  asserting  that  they  were 
against  English  constitutional  principles. 
He  won  his  case;  and  the  same  thing  was 
afterwards  decided  in  England  by  Lord 
Camden.  The  broader  principle,  much 
older,  that  a  man  should  not  be  compelled 
to  testify  against  himself,  is  a  very  corner- 
stone of  English  liberty.  It  is  far  too  pre- 
cious to  part  with,  but  it  has  undoubtedly 
been  much  abused  by  the  trust  magnates 
and  other  powerful  persons  who  were  en- 
deavoring to  evade  our  Federal  laws.  Now 
we  had  several  Acts  of  Congress  which  re- 
205 


THE  AMERICAN  CONSTITUTION 

quired  trusts  and  their  officers,  at  the  re- 
quest of  the  Commissioner  of  Corporations, 
to  make  reports  to  the  Government  and 
show  their  books.  They  hastened  to  do  so 
when  required.  It  necessarily  resuked  from 
the  fact  that  they  acted  under  Government 
compulsion,  that  they  were  immune  from 
prosecution  for  anything  revealed  by  the 
books  and  documents  delivered.  This  re- 
sult was  doubtless  a  great  disappointment 
to  the  President  and  a  great  miscarriage  of 
justice.  Nevertheless,  it  might  easily  have 
been  avoided  by  drawing  the  statute  or 
conducting  the  prosecution  so  as  to  require 
only  the  secretary  or  other  subordinate 
officer  having  possession  of  the  books  to 
produce  them,  thus  leaving  the  real  heads 
of  the  objectionable  trusts  open  to  prosecu- 
tion. There  can  be  little  question  that 
Judge  Humphrey's  decision  on  this  point 
was  perfectly  right. 

As  a  result  ofthis  Beef  Trust  decision,  how- 
ever, Attorney-General  Moody  promptly  in- 
troduced a  bill  into  Congress  giving  the  Gov- 
ernment the  right  to  appeal  on  a  ruling  of 
law  in  criminal  cases,  and  this  brings  us 
naturally  to  the  next  thing  I  want  to  discuss, 
206 


CHANGES  IN  THE  CONSTITUTION 

the  riglit  of  not  being  **  twice  in  jeopardy." 
We  have  seen  that  one  of  our  constitutional 
Hberties  is  expressed  by  these  words,  that 
no  man  shall  be  twice  put  in  jeopardy  of  his 
life  or  liberty  for  the  same  offence.     That  is 
to  say,  he  is  not  to  be  tried  twice.     From 
this  early  English  principle  grew,  in  many 
of  our  States,  the  notion  that  a  man  was 
tried  twice  when  the  Government  had   a 
right  to  appeal  the  case  to  a  higher  court. 
Now  this  really  is  a  misconception  of  the 
constitutional  principle.     No  man  is  twice 
in  jeopardy  unless  he  has  been  tried  twice 
by  a  jury — the  reason  for  this  being  that 
under  Anglo-Saxon  ideas  no  Judge,  no  King, 
but  only  twelve  lawful  men  of  the  neighbor- 
hood can  take  a  man's  life  or  liberty  away; 
but  when  a  man  has  been  tried  before  a 
jury  and  acquitted  on  a  ruling  of  law  which 
was  wrong,  and  it  is  possible  that  the  jury 
would  not  have  acquitted  him  had  the  ruling 
been  otherwise,  there  is  no  reason  why  that 
ruling  of  law  should  not  be  reviewed.     It 
would  be  better,  probably,  to  ha\'e  the  case 
at  once  suspended  when  the  ruling  of  law  is 
excepted  to,  so  that  no  jury  is  in  fact  brought 
in  on  the  first  trial.     The  bill  drawn,  I  bc- 
207 


THE  AMERICAN  CONSTITUTION 

lieve,  by  Mr.  Moody  was  promptly  (March 
2,  1907)  enacted,  and  is  simply  in  line  with 
the  rule  that  prevails  in  about  half  our 
States.  There  is  nothing  radical  or  revolu- 
tionary in  this,  and  in  the  future  the  Govern- 
ment will  have  the  right  to  appeal  from  any 
ruling  of  law  that  it  is  not  satisfied  with. 
Indeed,  I  only  wish  this  Act  had  been  in 
force  at  the  time  that  Judge  Humphrey 
made  his  celebrated  decision  in  the  Beef 
Trust  case.  It  might  have  saved  a  member 
of  the  judicial  branch  a  severe  written  cen- 
sure addressed  by  the  Chief  Executive  to 
the  House  of  Congress,  for  which  we  can 
hardly  go  back  for  a  precedent  to  the  time 
when  Thomas  Jefferson  said  of  Chief-Jus- 
tice Marshall's  decision  against  the  State  of 
Georgia:  "Well,  John  Marshall  has  made 
that  decision — Now  let  John  Marshall  en- 
force it." 

The  next  thing  in  the  Constitution  that  is 
a  great  issue  to-day  is  Art.  I,  Sec.  3,  requir- 
ing the  Senate  to  be  chosen  by  the  Legisla- 
ture of  each  State.  Nearly  every  State  in 
the  Union,  and  both  parties  in  more  than 
one,  have  adopted  resolutions  for  an  amend- 
ment of  this  part  of  the  Constitution,  re- 
208 


CHANGES  liN    llIK  CONS  111  UTION 

quiring  Senators  to  be  elected  by  popular 
vote.  This  stands  in  the  National  platform 
of  the  Democratic  party,  and  even  in  the 
platform  of  the  Republican  party  in  several 
States;  but  if  the  people  really  desire  it,  it 
is  not  necessary  to  amend  the  Constitution 
to  effect  this  reform.  All  they  have  to  do 
is  to  provide  for  an  expression  of  popular 
preference  at  the  polls,  just  as  they  do  now 
when  electing  a  President.  As  you  know, 
we  do  not  elect  Presidents  directly;  we  only 
vote  for  the  electors,  but  those  electors  are 
pledged  to  a  certain  presidential  candidate. 
In  the  same  way  it  is  perfectly  easy  to  pr(j- 
vide  by  State  statute  that  the  people  may 
be  allowed  to  express  their  preference  for 
United  States  Senator  at  the  polls,  and  then 
the  legislature  which  they  elect  will  hardly 
dare  go  against  their  expressed  will.  Sub- 
stantially this  system  has  been  adopted  in 
Oklahoma,  in  Wisconsin,  I  think,  and  in 
several  other  States,  and  if  the  parties  are 
really  in  earnest  about  it  they  can  do  it  in 
Massachusetts  next  winter. 

Our  third  point  of  discussion  is  Art.  I, 
Sec.  5:  each  House   shall   be  the  judge  of 
the  election,  returns,  and  qualifications  of  its 
209 


THE  AMERICAN  CONSTITUTION 

own  members.  Under  that  section,  mem- 
bers of  Congress  are,  as  you  know,  fre- 
quently unseated,  though  they  have  an  ap- 
parent popular  majority;  especially  when 
they  belong  to  the  minority  party  at  Wash- 
ington. Senator  Smoot  of  Oregon  was  very 
nearly  turned  out  of  the  Senate,  not  for  lack 
of  votes,  but  for  lack  of  moral  qualifications 
for  a  seat  in  that  fastidious  body;  the  oppo- 
site principle  was  vindicated  in  England 
more  than  one  hundred  years  ago  in  the 
famous  Wilkes  case.  There  is  no  doubt, 
however,  that  the  power  ought  to  lie  in 
Congress,  except  in  the  case  of  a  mere  ques- 
tion of  numbers  of  votes,  when  it  might 
fairly  be  referred  to  the  Courts.  Such  has 
been  the  history  of  this  matter  in  England. 
The  power  of  the  House  of  Commons  to 
judge  of  its  own  elections,  returns,  and  quali- 
fications was  early  vindicated  as  against  the 
Crown,  but  in  modern  times  they  have  of 
their  own  will  adopted  a  judicial  procedure. 
Art.  I,  Sec.  7,  that  bills  for  raising  revenue 
shall  originate  in  the  House,  I  have  spoken 
of  elsewhere.  This  provision  of  the  Con- 
stitution should  be  observed  in  spirit  as  well 
as  in  letter.  Art.  I,  Sec.  9,  Clause  4— the 
210 


CHANGES  IN  THE  CONSTITUTION 

Democratic  party  is  apparently  committed 
to  an  amendment  of  this  section  so  that 
Congress  shall  be  allowed  to  impose  direct 
taxes,  or  at  least  income  taxes,  which  the 
Supreme  Court  has  recently  held  to  be 
direct  within  the  meaning  of  the  Constitu- 
tion. This  is  a  matter  of  which  the  people 
should  judge.  There  was  a  fear  in  early 
times  that  the  poor  States  might  tax  the  rich 
States  if  this  clause  of  the  Constitution  were 
not  put  in.  If  that  fear  has  departed,  the 
Constitution  should  be  so  amended.  I 
doubt,  however,  whether  such  an  amend- 
ment would  be  agreed  to  by  three-fourths 
of  the  States.  Under  present  tendencies, 
that  very  fact  is  argued  to  be  a  reason  for 
straining  or  stretching  the  Constitution  with- 
out amending  it;  but  such  a  notion,  though 
held  by  individuals,  has  not  yet  formally 
been  adopted  by  either  of  the  great  political 
parties.  Then  of  the  proposal  to  tax  out  of 
existence,  either  by  income  or  succession 
tax,  "swollen  fortunes."  This  brings  up 
again  the  great  question  which  lies  before 
us.  Is  it  the  function  or  province  of  the 
Federal  Government  to  step  between  the 
individual  and  his  property,  to  regulate  the 

21  I 


THE  AMERICAN  CONSTITUTION 

private  affairs  of  all  men  in  that  most  im- 
portant part  of  them  which  concerns  their 
fortunes  ?  There  can  be  no  question  but 
that  every  member  of  the  Constitutional 
Convention  of  1787,  not  excepting  the  cele- 
brated Judge  Wilson,  recently  resurrected 
by  the  President,  would  have  earnestly  an- 
swered in  the  negative.  Not  the  wildest 
Federalist  ever  dreamed  of  putting  in  the 
power  of  the  Federal  Government  the  con- 
trol of  his  domestic  affairs.  The  Federal 
Government  has  not,  except  at  sea  or  in  the 
army,  that  cardinal  power  of  a  Sovereign 
Government — to  inflict  the  death  penalty 
for  crimes,  other  than  treason.  All  that 
even  Hamilton  aimed  at  was  to  make  the 
National  Government  strong,  supported  and 
authoritative  at  home,  and  respected  abroad. 
But  he,  as  much  as  Thomas  Jefferson,  un- 
derstood that  it  was  to  be  purely  political. 
The  Government  has  power  to  raise  revenue 
for  the  National  defence  and  the  general  wel- 
fare, and  an  inheritance  tax  imposed  for 
that  purpose  has  been  held  constitutional 
by  the  Supreme  Court;  but  a  tax  which  on 
its  face  was  aimed  not  at  raising  necessary 
revenue  but  at  diminishing  or  destroying 
212 


CHANGES  IN  THE  CONSTITUTION 

large  private  fortunes  would  be  unconstitu- 
tional, and  for  this  statement  I  have  very 
high  authority.  If,  under  the  Interstate 
Commerce  clause,  the  Federal  Government 
is  to  control,  not  only  commerce  itself,  but 
the  persons  who  conduct  it  and  the  fortunes 
which  are  in  part  derived  from  it,  it  may 
as  well  control  the  marriages  of  the  parties 
thereby  enriched  and  the  legacies  they  may 
leave  to  their  children.  There  is  no  bound  or 
limit  to  this  path  short  of  absolute  control  by 
Congress  of  the  people  and  all  their  domes- 
tic affairs.  The  fact  must  never  be  lost 
sight  of  that  the  framers  of  the  Constitution, 
as  clearly  as  the  English  language  could  ex- 
press it,  sought  to  deny  to  the  Federal  Gov- 
ernment any  power  of  direct  taxation  of  the 
people.  It  is  almost  by  a  fiction  of  law,  by 
what  was  at  the  time  regarded  as  a  dubi- 
ous decision  of  the  Supreme  Courts  of 
Massachusetts  and  the  United  States  that 
a  tax  on  inheritances  was  held  not  to  be 
a  direct  tax.  The  law  now  so  stands;  but 
the  spirit  of  the  Constitution  is  against  it. 

Art.  I,  Sec.  8,  Clause  3  (to  regulate  com- 
merce among  the  several  States),  and  Art. 
I,  Sec.  9,  Clause  6   (no  preference  shall  be 
213 


THE  AMERICAN  CONSTITUTION 

given  by  any  regulation  of  commerce  to 
the  ports  of  one  State).  The  great  railway 
regulation  bill,  secured  by  the  President  last 
year,  has  been  in  effect  too  short  a  time  yet 
for  us  to  judge  of  its  results.  As  to  its  con- 
stitutionality, it  is  still  argued  that  it  has 
two  or  three  fatal  defects.  First,  that  it  is 
a  delegation  of  legislative  power  to  an  ad- 
ministrative board,  and,  as  such,  uncon- 
stitutional, or  else  that  it  clothes  an  admin- 
istrative board  with  judicial  power,  which 
is  equally  so;  second,  that  it  takes  away  a 
man's  property  or  the  property  of  railroad 
corporations  without  due  process  of  law. 
This  is  probably  cured  by  the  broad  court 
review  provision  which  was  inserted  by 
Senators  Knox  and  Foraker  against  the 
opinion  of  the  Administration.  Third,  pos- 
sibly, that  it  is  in  effect  a  preference  given 
by  a  regulation  of  commerce  to  the  ports  of 
one  State  over  those  of  another.  But  on 
the  broad  principle  whether  the  Constitu- 
tion in  the  Interstate  Commerce  clause  con- 
templates any  such  power,  a  word  or  two  is 
necessary.  We  have  sufficiently  pointed 
out  that  the  intent  of  the  Constitution  is  to 
make  commerce  among  the  States  free  and 
214 


CHANGES  IN  THE  CONSTITUTION 

unhampered  by  anybody.  If  the  words 
they  have  chosen  have  nulHfied  such  intent, 
it  is  at  least  to  be  noted  that  the  conclusion 
will  carry  us  very  far.  Not  only  under  it  may 
they  as  well  regulate  charges,  and  hence  prob- 
ably the  profits,  to  be  derived  from  commerce 
with  the  Indian  tribes,  but  there  would  seem 
no  reason  to  say  that  they  may  not  do  the 
same  as  to  commerce  with  foreign  nations; 
and,  although  we  think  of  the  railway  rate 
regulation  law  as  applying  only  to  corpora- 
tions, we  are  by  no  means  limited  to  that 
conclusion  if  the  foundation  of  the  present 
law  is  valid,  for  it  rests  not  on  the  power  to 
regulate  corporations — at  present  the  Fed- 
eral Government  has  none — but  on  the 
power  to  regulate  commerce  among  the  sev- 
eral States.  It  can  regulate  that  commerce 
quite  as  well  when  done  by  individuals  as 
when  done  by  corporations.  Therefore,  if 
the  principle  of  the  Hepburn  Act  is  valid, 
all  the  charges  and  profits  made  by  individ- 
uals engaged  in  any  interstate  commerce 
may  be  delimitated,  regulated  or  controlled 
by  Congress.  Not  only  that,  but  the  form 
and  law  of  the  bills  of  exchange  and  the 
bills  of  lading  whereby  such  commerce  is 
215 


THE  AMERICAN  CONSTITUTION 

carried  on — this,  indeed,  possibly  would  not 
be  denied — but  the  interest  to  be  charged 
upon  such  bills  of  exchange  as  well.  And 
when  we  apply  this  principle  to  commerce 
with  foreign  nations  (and  the  power  must 
apply  to  one  if  it  applies  to  the  other)  we  are 
met  with  the  tremendous  consequence  that 
Congress  may  prescribe  all  freight  or  pas- 
senger rates  of  vessels  doing  business  with 
foreign  ports,  the  laws  and  conditions  under 
which  they  shall  do  such  business,  and, 
though  it  cannot  indeed  enforce  such  laws 
directly,  it  may  lay  an  embargo  on  all  such 
commerce  when  the  laws  are  not  observed. 
Then  as  to  the  goods  themselves,  which 
may  be  a  proper  subject  of  interstate  com- 
merce. It  is  now  proposed  to  exclude  goods 
which  are  not  manufactured  or  produced  in 
conformity  with  a  national  labor  law;  but 
the  most  radical  abolitionist  in  the  times 
before  the  Civil  War  never  proposed  to 
destroy  the  institution  of  slavery  by  exclud- 
ing the  cotton  or  sugar  or  rice  grown  in 
whole  or  in  part  by  slave  labor  from  any 
transportation  across  State  lines.  Charles 
Sumner  and  other  abolitionist  lawyers  were 
dull  and  uninventive.     It  is  too  bad  that  it 

2l6 


CHANGES  IN  THE  CONSTITUTION 

was  so,   because  otherwise  the   Civil  War 
might  have  been  avoided. 

Then  as  to  the  economic  side  of  the  ques- 
tion. It  is  argued  that  it  will  make  rates  in- 
elastic, will  arrest  the  growth  of  business, 
and  will  give  a  preference  to  certain  ports 
or  certain  sections  contrary  to  this  provision 
of  the  Constitution.  It  is  too  early,  in  my 
opinion,  to  judge  of  any  of  these  things.  I 
will,  however,  mention  one  significant  event, 
while  reminding  you  of  what  I  said  of  the 
evil  effects  of  interposing  boards  or  commis- 
sions between  the  people  and  their  common- 
law  rights.  The  first  decision  under  the 
railway  rate  regulation  bill  was  one  arising 
from  the  State  of  Texas,  where  certain  Texas 
merchants  brought  suit  in  the  State  Courts 
under  the  very  strict  railroad  law  of  Texas, 
claiming  discrimination  in  the  rates  charged 
to  the  Standard  Oil  Company  as  against 
other  companies,  and  also,  I  think,  extor- 
tion in  the  rates  for  cotton.  The  complain- 
ing merchants  won  their  case  in  the  State  of 
Texas;  but  it  was  removed  from  the  highest 
court  of  Texas  to  the  United  States  Su- 
preme Court,  which  reversed  the  Texas  de- 
cision on  the  ground  that  the  railroads 
217 


THE  AMERICAN  CONSTITUTION 

having  filed  schedules  under  the  national 
railway  rate  regulation  bill,  the  courts  of 
Texas  were  powerless,  the  laws  of  Texas 
ceased  to  apply,  and  the  people  of  Texas 
could  no  longer  enforce  their  own  law  reme- 
dies, or  even  the  common  law.  All  control 
of  commerce  was  taken  from  "A"  and 
placed  in  "AZ."  Whatever  the  extortion  or 
discrimination,  they  must  wait  until  they 
could  get  a  ruling  from  the  Interstate  Com- 
merce Commission,  with  ultimate  appeal 
only  to  the  Supreme  Court  at  Washington. 
And  in  the  long  run  such  rulings  will  neces- 
sarily tend  to  a  uniform  mileage  rate,  not 
lower  than  the  poorer  railroads  can  afford. 
The  Hepburn  law  will  be,  in  my  opinion, 
a  very  good  thing  for  the  railroads  but  will 
disappoint  the  expectations  of  the  people 
and  prove  an  obstacle  to  the  settlement  of 
new  localities  or  the  founding  of  new  in- 
dustries. 

This  naturally  brings  us  to  almost  the 
greatest  principle  of  all,  that  we  are  in  dan- 
ger of  forgetting — the  importance  of  careful 
division  of  the  powers.  The  two  rocks 
ahead  of  us,  in  my  opinion,  are  that  the 
people  may  come  to  forget  the  importance 
218 


CHANGES  IN  THE  CONSTITUTION 

of  separating  the  Executive  from  the  Legisla- 
tive, and  that  tliey  may  come  to  forget  the 
importance  of  separating  those  powers  which 
belong  to  the  Nation  from  those  which  re- 
main with  the  States  or  even  are  reserved 
to  the  people.  "Render  unto  Caesar  those 
things  that  are  Caesar's."  This  railway  rate 
regulation  bill  is  the  first  tremendous  exam- 
ple of  it,  perhaps, in  National  affairs;  though 
before  that  there  was  the  old  Interstate  Com- 
merce Commission,  and  there  is  the  Bureau 
of  Corporations.  I  shall  say  something  of 
the  latter  later.  But  in  the  States,  as  you 
know,  there  has  been  a  tremendous  duplica- 
tion of  Boards  and  Commissions  and  Com- 
mittees, all  charged  with  matters  of  legisla- 
tion which  should  belong  to  the  Legislature, 
or  with  matters  of  judgment  or  administra- 
tion which  should  belong  to  the  Courts,  or 
to  the  ordinary  servants  of  the  people. 
Nearly  all  these  Boards  are  in  effect  law- 
makers, judges  and  juries  in  their  own 
affairs;  and  though  there  is  sometimes  in 
theory  an  appeal  from  them  to  the  courts, 
it  is  almost  impossible  for  an  ordinary  man 
who  has  a  grievance  to  get  beyond  the 
Board  or  Commission  if  it  decide  against 
219 


THE  AMERICAN  CONSTITUTION 

him.  I  am  not  saying  that  they  do  not  do 
some  good  work,  but  I  say  the  principle  is 
bad,  and  should  be  watched  carefully.  The 
constitutional  rights  of  a  man  almost  disap- 
pear before  such  a  Board  or  Commission; 
as  they  do  before  a  military  court  in  the 
Army,  or  indeed  before  any  administrative 
officer  clothed  with  unchecked  power. 

Coming  from  the  question  of  division  of 
powers  to  that  of  so-called  usurpation, 
though  the  word  aggrandizement  would 
perhaps  more  fairly  express  it,  we  have 
noted  that  that  most  feared  by  Thomas 
Jefferson,  usurpation  by  the  judicial  branch 
of  Government,  has  not  proved  a  serious 
danger;  but  each  of  the  other  branches,  as 
well  as  each  branch  of  Congress,  has  shown 
a  tendency,  and  is  now  showing  a  tendency, 
to  exaggerate  its  powers  at  the  expense  of 
constitutional  principles.  The  interference 
by  the  Senate  with  treaties  has  already  been 
discussed,  as  well  as  the  way  that  it  has 
taken  unto  itself  the  shaping  of  measures 
of  revenue  or  taxation.  So,  also,  its  misin- 
terpretation of  its  right  of  confirming  Presi- 
dential appointments.  But  the  House  is  by 
no  means  guiltless  in  this  last  matter.     It 

220 


CHANGES  IN  THE  CONSTI'lUTION 

has  grown  to  be  the  custom,  so  that  it  has 
recently  been  claimed  by  a  Massachusetts 
Congressman  to  be  the  unwritten  law,  that 
a  large  number  of  Federal  officers  are  in 
effect  to  be  appointed  by  members  of  Con- 
gress. Art.  II,  Sec.  2  of  the  Constitu- 
tion says  only  that  "the  President  shall 
nominate  and  by  and  with  the  advice  and 
consent  of  the  Senate  .  .  .  shall  appoint 
...  all  other  officers  of  the  United  States 
whose  appointments  are  not  herein  other- 
wise provided  for."  They  are  to  be  con- 
firmed by  the  Senate;  but  it  is  clear  that 
the  Constitution  intends  that  members  of 
the  Lower  House  shall  have  nothing  to  do 
with  the  matter;  and  the  enlightened  view 
of  the  situation  would  lead  Congressmen 
to  desire  this  themselves.  They  gain  noth- 
ing from  the  present  custom,  not  even  in 
political  power;  while  they  incur  the  danger 
of  making  many  enemies,  and  the  loss  to  the 
American  people  of  a  large  part  of  their 
valuable  time. 

The  aggrandizement  of  the  Executive 
power  is  one  that  we  have  traced  so  care- 
fully through  English  history  and  spoken 
of  so  often   in   earlier   lectures   that   there 

221 


THE  AMERICAN  CONSTITUTION 

seems  to  be  now  but  a  word  or  two  to  add. 
The  notion  that  the  President  should  not 
endeavor  to  impose  his  poHcies  on  Congress 
prevails  now  very  largely  with  that  body. 
Indeed,  you  will  remember  what  Speaker 
Onslow  said  to  the  effect  that  a  rumor  run- 
neth about  the  House,  take  care  what  ye 
do  with  this  bill;  it  liketh  not  the  King. 
Take  care  what  ye  do  as  to  that  other.  It 
pleaseth  the  King's  Majesty;  and  he  con- 
signed such  notions  to  be  buried  in  Hell — 
in  the  emphatic  language  of  that  day;  but 
Section  3  of  the  Article  of  our  Constitution 
concerning  the  President's  duties  says  that 
*'  He  shall  from  time  to  time  give  to  the  Con- 
gress information  of  the  state  of  the  Union 
and  recommend  to  their  consideration  such 
measures  as  he  shall  judge  necessary  and 
expedient."  Our  President  is,  therefore, 
quite  within  his  constitutional  rights  in  so 
doing,  though  it  is  the  last  thing  that  would 
now  be  attempted  by  the  British  King. 

The  only  express  change  in  the  Constitu- 
tion now  seriously  proposed  is  that  for  the 
repeal  of  the  Fifteenth,  and  possibly  even 
the  Fourteenth,  Amendment.  The  Fif- 
teenth Amendment,  you  remember,  is  the 
222 


CHANGES  IN  THE  CONSTITUTION 

one  which  gave  the  negroes  the  right  to 
vote.  The  Fourteenth  Amendment  is  one 
which  was  aimed  at  giving  the  negroes  civil 
rights;  and  also  at  guaranteeing  certain 
cardinal  rights  to  all  United  States  citizens, 
even  against  the  laws  of  the  States.  It  was, 
therefore,  the  first  direct  interference  of  the 
Federal  Government  with  the  condition  of 
the  people,  their  property  and  civic  rights. 
In  a  sense,  therefore,  this  is  an  anti-States' 
Rights  measure.  In  fact  the  last  three 
amendments  are  all  somewhat  of  this  na- 
ture; which  shows  that  it  is  not  true  that,  if 
the  people  really  desire  an  amendment  in- 
creasing the  Federal  power  and  taking  away 
rights  which  before  that  belonged  to  the 
States,  there  is  any  difficulty  in  doing  so. 
It  has  been  done  no  less  than  three  times  in 
the  last  forty  years.  This  reactionary  pro- 
posal, however,  seems  to  have  been  lost 
sight  of  in  the  last  year  or  two;  whether  or 
not  it  is  ''practical  politics,"  I  personally 
can  see  no  reason  for  the  repeal  of  either 
amendment. 

Last  of  all,  we  come  to  the  one  now  most 
discussed.     Interstate  Commerce — how  far 
do  the  powers  of  the  Federal  Government 
223 


THE  AMERICAN  CONSTITUTION 

extend  ?  Labor,  health,  marriage,  divorce 
— should  the  Federal  power  be  extended 
also  to  these  fields  ?  To  this  question  and 
the  regulation  of  corporations  generally,  we 
shall  devote  our  last  lecture. 

We  may,  however,  dispose  of  labor  laws, 
marriage  laws  and  the  like  in  a  few  words. 
There  is  no  general  desire  on  the  part  of  the 
States  for  uniform,  still  less  Federal,  laws  in 
these  important  social  and  domestic  affairs. 
For  fifteen  years  the  writer  served  as  Com- 
'missioner  for  Massachusetts  upon  National 
Uniformity  of  Law,  meeting  each  year  simi- 
lar commissions  appointed  under  the  laws 
of  nearly  all  the  other  States.  There  is  no 
general  desire  for  enforced  uniformity  on 
these  subjects  throughout  the  Union.  Cli- 
mate, conditions,  races,  religions  vary  too 
widely  in  our  great  country.  The  National 
Conference  of  State  Uniformity  Commis- 
sions had  little  trouble  in  getting  its  uniform 
law  on  Bills  and  Notes  adopted  throughout 
the  Union;  it  has  made  no  progress  in  labor 
or  marriage  legislation  except  the  doing 
away  with  the  "common  law"  marriage  in 
New  York  and  a  certain  reform  in  divorce 
procedure.  The  causes  lie  too  deep.  In 
224 


CHANGES  IN  THE  CONSTITUTION 

1895  Massachusetts  instructed  her  Com- 
missioners to  bring  before  the  National  Con- 
ference the  question  of  uniform  hours-of- 
labor  laws.  The  conference  that  year  was 
at  Detroit,  and  the  writer,  acting  as  chair- 
man, had  the  request  of  the  legislature  of 
Massachusetts  introduced  from  the  floor. 
Before  the  reading  was  half  over,  two-thirds 
of  the  delegates  were  up  in  angry  disap- 
proval; a  rebuff  to  our  State  was  only 
avoided  by  having  the  matter  smothered  in 
committee. 

Uniformity  is  hopeless  on  these  points — 
nor  is  it  wise.  The  Southern  marriage  laws 
are  aimed  to  protect  the  young  girl  against 
dishonor;  the  Northern  follow  rather  the 
European  view  of  protecting  the  man,  or  the 
legitimate  wife,  against  the  adventuress. 
Half  the  States  think  a  marriage  a  mere 
contract;  others  hold  to  the  view  that  it  is  a 
status,  or  a  sacrament  of  the  church.  In 
labor  legislation  there  is  even  less  desire  for 
national  laws.  What  little  there  is  is  fos- 
tered partly  by  the  labor  unions,  but  mainly 
by  Northern  manufacturers.  In  my  ex- 
perience you  will  not  get  six  States  to  vote 
for  a  uniform  law  on  causes  for  divorce,  nor 
225 


THE  AMERICAN  CONSTITUTION 

six  for  a  nine-hour  day  in  factories.  But  if 
they  will  not  do  it  by  voluntary  legislation 
of  their  own,  how  absurd  to  suppose  they 
will  accept  Federal  compulsion  by  a  con- 
stitutional amendment — or  submit  to  the 
strained  construction  whereby  the  President 
urges  those  powers  **must  be  found"! 


226 


VIII 

INTERSTATE  COMMERCE,  THE  CONTROL 
OF  TRUSTS,  AND  THE  REGULATION 
OF  CORPORATIONS 

THE  right  to  ''regulate  commerce 
among  the  States";  these  five  words 
have  given  rise  to  more  doubt  among  states- 
men, and  to  more  construction  by  the 
Courts,  than  any  other  phrase  in  the  Con- 
stitution. You  will  note  that  this  power 
is  placed  third  in  the  line  of  the  eighteen 
paragraphs  of  powers  granted  to  Congress. 
This  fact  can  hardly  indicate  its  relative  im- 
portance, as  although  they  put  the  power 
to  tax  and  the  power  to  borrow  money  ahead 
of  it,  yet  they  put  the  power  to  raise  armies 
and  declare  war  much  lower  down.  Now, 
the  opinion  of  what  this  paragraph  in  the 
Constitution  means  ranges  all  the  way  from 
those  who  say  that  it  simply  means  that 
the  States  may  not  regulate  such  commerce, 
and  does  not  imply  that  the  Nation  may,  in 
227 


THE  AMERICAN   CONSTITUTION 

any  broad  sense,  but  only  gives  it  the  neces- 
sary local  control  over  the  physical  instru- 
mentalities of  commerce,  which,  in  those 
days,  were  only  vessels  or  stage  coaches,  and 
over  the  actual  goods  transported  while  in 
process  of  transit;  this  is  the  old  strict  con- 
struction view,  and  undoubtedly  our  fathers 
started  with  this;  and  they  also  probably 
thought  that  the  States  could  make  regula- 
tions concerning  interstate  commerce  so 
long  as  they  did  not  come  into  conflict  with 
any  law  of  the  United  States;  to,  from  that 
extreme,  the  radical  view  of  some  statesmen 
to-day  who  say  that  under  these  five  words 
not  only  has  Congress  the  power  to  regu- 
late, but  the  power  to  forbid  or  to  tax  inter- 
state commerce ;  that  the  word  "  commerce  " 
includes  not  only  goods  in  transit  but  all 
articles,  crops,  or  manufactures  which  may 
ultimately  become  the  subject  of  such  com- 
merce; and  all  instrumentalities  of  such 
commerce,  physical  or  documentary;  that 
the  right  to  regulate  further  includes  not 
only  the  regulation  of  the  goods  or  articles, 
but  of  the  persons  who  conduct  the  com- 
merce and  hence  of  their  charges  or  even  their 
profits;  and  this  last,  of  course,  leads  to 
228 


INTERSTATE  COMMERCE 

the  regulation  of  the  corporations  who  do 
so,  if  it  be  conducted  by  a  corporation,  as 
in  most  cases  it  is.  You  can  see  that  such  a 
broad  construction  of  the  power  will  really 
put  the  control  of  all  the  people's  commer- 
cial affairs  in  the  hands  of  Congress  or  the 
Federal  Government,  except  only  such  nar- 
row matters  and  such  articles  of  limited  use 
or  transport  as  are  both  made,  moved  and 
finally  consumed  within  the  lines  of  one 
State;  and  under  the  interpretation  pro- 
posed it  would  even  apply  to  them  if  they 
were  in  fact  tnade,  grown  or  sold  by  a  cor- 
poration doing  business  in  more  than  one 
State.  Take,  for  instance,  a  man  who  has 
a  cranberry  bog  down  near  Fall  River,  and 
a  neighbor  who  has  an  adjoining  cranberry 
bog  in  the  neighboring  State  of  Rhode  Isl- 
and. If  they  form  a  company  and  put  the 
two  bogs  together,  they  become,  under  this 
interpretation,  subject  at  once  to  the  con- 
trol of  Congress  and  no  longer  under  the 
laws  either  of  Massachusetts  or  Rhode 
Island. 

I  do  not  know  that  I  have  convinced  you 
that  such  centralization  would  be  tremen- 
dous, but  if  I  have  not,  I  can  only  hope  that 
229 


THE  AMERICAN  CONSTITUTION 

you  will  think  it  over.  Time  forbids  my 
giving  all  the  instances  that  I  think  would 
lead  you  to  see  what  I  mean.  The  great 
bulk  of  commerce  is  or  may  be  interstate; 
and  this  interpretation  of  the  Constitution 
would  not  only  take  the  control  of  the  prop- 
erty away  from  the  citizens  under  their 
State  laws  but  would  deprive  them  of  their 
State  laws  in  forming  corporations,  or  pos- 
sibly even  partnerships;  would  make  it 
necessary  for  them  to  conduct  their  litiga- 
tion in  the  Federal  Courts;  would  deprive 
the  States  of  police  powers  and  the  local 
courts  of  jurisdiction;  and  finally  deprive 
the  States,  and  probably  even  the  towns  or 
the  counties  where  they  are  situated,  of  the 
power  to  tax  them. 

You  remember  there  was  one  great  centrali- 
zation move  attempted  under  the  Fourteenth 
Amendment.  The  first  section  says  that  no 
State  shall  deprive  any  person  of  life,  liberty 
or  property  without  due  process  of  law,  nor 
deny  to  any  person  the  equal  protection  of 
the  laws.  Under  the  theory  of  the  radical 
republicans,  at  that  time  the  old  Abolition- 
ist party,  this  gave  the  Federal  Government 
the  right  to  step  in  whenever  any  negro 
230 


INTERSTATE  COMMERCE 

claimed  that  he  was  not  being  treated  fairly 
in  any  business,  or  that  he  was  deprived  by 
anybody  or  any  person  of  any  civil  rights. 
This  interpretation  put  all  the  domestic 
and  social  rights,  the  moment  any  claim  of 
race  distinction  was  involved,  in  the  hands 
of  the  Federal  Government;  enabled  it  not 
only  to  interfere  with  State  courts  or  laws, 
but  to  make  acts  of  Congress  of  their  own 
which  should  bear  directly  upon  the  citizen 
in  his  domestic,  social,  or  local  affairs.  Such 
laws  were,  in  fact,  passed,  and  such  inter- 
ference was,  in  fact,  made  by  the  Federal 
officers  and  courts.  Now  this,  you  can  see, 
would  have  been  a  process  of  centralization 
very  great — though  probably,  I  think,  not 
greater,  at  least  as  far  as  commercial  affairs 
or  rights  of  property  are  concerned,  than 
were  we  to  adopt  this  extreme  interpreta- 
tion of  interstate  commerce.  That  attempt 
by  the  predominant  party  under  the  Four- 
teenth Amendment,  was  precisely  as  if  the 
Norman  kings,  after  the  Conquest,  had  said 
that  any  case,  or  proceeding,  or  crime  in 
which  any  Norman  was  concerned,  or  in 
which  there  was  any  claim  of  force  by  his 
Saxon  neighbors,  or  indeed  any  matter 
231 


THE  AMERICAN  CONSTITUTION 

which  concerned  the  two  races,  should  at 
once  be  taken  away  from  the  local  English 
courts  and  brought  to  the  King's  Court 
which  he  held  in  person  at  Westminster,  and 
furthermore,  that  the  local  laws  should  no 
longer  apply  to  the  Normans  and  Saxons, 
but  that  in  any  case  where  the  rights  of 
both  were  involved  the  King  of  France  and 
England,  of  the  empire,  should  be  allowed 
to  make  laws  without  the  consent  of  the 
local  English  Parliament.  What  was  the 
result  ?  Well,  the  result  with  us  after  the 
Civil  War  was  precisely  what  it  was  in 
England  after  the  Conquest — only  that  we 
re-asserted  local  liberties  much  more  speed- 
ily by  reason  of  the  fact  that  we  had  a  Su- 
preme Court  constructed  for  just  such  cases. 
It  took  the  Federal  Supreme  Court  just 
about  twenty  years  to  destroy  this  attempted 
centralization — to  say  that  no  powers  were 
taken  from  the  States  and  no  liberties  from 
the  people,  by  the  Fourteenth  Amendment, 
only  that  some  were  additionally  guaranteed, 
and  that  all  that  it  meant  was  that  the  States 
could  not  make  any  law  which,  on  the  face 
of  the  law,  appeared  to  go  against  these 
cardinal  English  liberty  rights.  In  other 
232 


INTERSTATE  COMMERCE 

words,  the  grand  effect  was  simply  to  re- 
affirm the  cardinal  principles  of  Magna 
Charta  as  guaranteed  as  well  by  the  National 
power  against  the  action  of  the  States  as 
against  its  own  action — making  a  double 
safety-lock,  as  it  were,  of  these  cardinal 
rights  through  both  the  Federal  and  the 
State  Constitution,  precisely  what  they  had 
previously  done  in  the  case  of  bills  of  at- 
tainder— but  giving  no  new  power  to  the 
Federal  Government  over  the  people  of  the 
States. 

There  are  certain  rights,  you  will  remem- 
ber, which  come  under  our  *'XZ"  sub- 
division, which  are  guaranteed  both  by  the 
States  and  by  the  Nation  in  the  Federal 
Constitution,  certain  liberties  protected  from 
the  action  of  both,  and  the  only  effect  of  the 
Fourteenth  Amendment  here  was  to  add 
life,  liberty  and  property,  and  the  equal  law 
clause  of  Magna  Charta,  to  the  others;  and 
I  do  not  think  I  am  inaccurate  when  I  say, 
at  all  events  it  is  broadly  true,  that  every 
attempt  by  Congress  under  the  Fourteenth 
Amendment  to  make  laws  applying  directly 
to  the  people  of  the  States — in  other  words, 
every  attempt  to  assume  new  powers  of  cen- 

233 


THE  AMERICAN  CONSTITUTION 

tralization  under  the  Fourteenth  Amend- 
ment not  previously  granted  in  the  Con- 
stitution—was sooner  or  later  declared  null 
and  void  by  the  Supreme  Court  of  the 
United  States.  And  this  may  yet  be  the 
case  with  the  attempted  National  control 
over  corporations  and  industries  generally. 

How,  then,  are  we  to  cure  the  evils  of 
trusts  ?  For,  as  you  doubtless  know,  this 
whole  talk  of  the  interstate  commerce  clause 
of  the  Constitution  has  arisen  solely  by 
reason  of  our  desire  to  regulate  and  control 
trusts — the  evils  of  great  corporations,  tend- 
ing to  monopoly,  or  not  to-day  properly 
regulated  by  the  laws  of  the  States  which 
created  them.  Even  the  railways,  had  they 
remained  in  their  State  lines,  would  prob- 
ably never  have  discovered  that  they  were 
subject  to  a  National  Commission. 

President  Roosevelt  was  the  first  of  our 
statesmen  clearly  to  express  this  difficulty. 
In  words  that  have  become  historical  he 
pointed  out  at  the  very  beginning  of  his  ad- 
ministration that  the  trouble  with  these 
trusts,  that  is  to  say,  these  huge  corpora- 
tions chartered  by  individual  States  (for 
such  they  had  now  all  become),  was  that 
234 


INTERSTATE  COMMERCE 

they  were  In  practice  amcnahle  to  no  sov- 
ereign. That  was  exactly  the  truth;  and 
that  is  still  the  difficulty.  Corporations  are 
artificial  bodies.  It  is  only  by  a  fiction  of 
the  law  that  we  have  grown  to  give  them 
any  powers  at  all.  It  is  only  by  an  accident 
of  our  National  organization  that  we  have 
permitted  them  to  act  in  more  than  one 
State.  A  corporation  of  New  Jersey  might 
just  as  well  have  been  prohibited  at  the 
start  from  acting  in  the  State  of  Georgia  or 
Massachusetts,  as  have  been  allowed  so  to 
do.  I  can  only  say  here  that  the  accident 
of  the  law's  development  worked  that  way. 
Broadly  speaking,  this  right  does  not  exist 
as  between  different  nations;  but  owing  to 
the  desire  of  our  States  to  be  friendly  to 
each  other,  and  the  full  faith  and  credit 
clause,  so-called,  and  other  implications  in 
the  Constitution,  our  courts  early  formulated 
a  doctrine  of  "comity,"  which  you  might 
translate  as  courtesy — under  which  the  cor- 
porations of  one  State  were  allowed  to  come 
into  another  State  and  do  business.  And 
not  only  this,  but  they  came  in  7iot  only  ivith 
the  powers  which  that  State  chose  to  permit 
to  its  own  corporations,  but  with  all  the  im- 

235 


THE  AMERICAN  CONSTITUTION 

possible  or  wrongful  powers  that  might  have 
been  granted  to  it  in  the  State,  New  Jersey 
or  West  Firginia,  which  gave  it  its  charter. 
Unfortunately,  this  business  had  proved 
profitable  to  the  States  having  lax  laws. 
New  Jersey  is  said  to  run  her  State  Govern- 
ment entirely  on  the  license  fees  of  corpora- 
tions, most  of  which  do  business  elsewhere; 
and  many  of  the  States  have  got  to  be  mere 
breeding-nests  for  these  predatory  corpora- 
tions; once  hatched  in  the  State,  New  Jer- 
sey or  Maine  or  Delaware,  and  having  paid 
their  birth  tax,  as  it  were,  the  parent  State 
took  little  further  interest  in  them.  Like 
birds  of  prey,  they  leave  the  mother-perch 
to  violate  the  laws  or  monopolize  the  busi- 
ness of  other  States.  And  they  are  never 
controlled,  or  warned  back,  still  less  "called 
down,"  by  the  State  which  created  them. 
The  President  pointed  out  in  early  messages 
that  some  such  corporations  were  actually 
chartered  expressly  for  the  purpose  of 
breaking  or  evading  the  laws  of  other  States. 
He  put  in  action  all  the  laws  of  Congress 
and  all  the  energies  of  his  department,  and, 
as  a  result,  pressed  to  a  victory  for  the 
Government  the  great  Northern  Securities 
236 


INTERSTATE  COMMERCE 

case,  to  the  probable  surprise  of  most  of  the 
offenders.  In  this  case  the  Supreme  Court, 
though  by  a  divided  decision,  estabhshed 
the  principle  for  which  the  President  was 
contending.  That  is  to  say,  that  under  the 
Sherman  Act— the  anti-trust  act  which  for- 
bids combinations  of  two  or  more  persons 
or  corporations  to  restrain  trade  among  the 
States — a  single  corporation  created  under 
the  laws  of  New  Jersey  for  the  purpose  of 
holding  two  railroads  and  thus  evading  the 
national  law,  was,  and  remained,  a  device 
or  conspiracy  within  the  purview  of  that 
Act;  was  therefore  forbidden  by  it;  and 
could  be  dissolved  at  suit  of  the  Federal 
Government. 

Here  was  a  complete  victory;  and  under 
this  decision  other  victories  have  followed. 
There  is  no  trouble,  therefore,  in  restraining 
or  breaking  up  combinations  or  corpora- 
tions organized  to  monopolize  a  trade  or  a 
business,  when  that  trade  is  in  its  nature 
interstate  commerce.  Railroads  which  cross 
State  lines  obviously  are  interstate  com- 
merce corporations.     So  far  all  right. 

But  we  did  not  exhaust  the  evil,  though 
some  almost  thought  we  had  exhausted  the 

237 


THE  AMERICAN  CONSTITUTION 

powers  of  the  Federal  Government.  Under 
the  ordinary  older  view,  only  railroads  and 
steamboat  or  other  transportation  com- 
panies were  held  to  be  interstate  commerce 
corporations.  In  fact,  our  Supreme  Court 
has  decided  that  manufactures,  however 
large,  and  although  conducted  by  the  same 
combination  in  many  States,  are  not  com- 
merce, still  less  interstate  commerce.  And 
nearly  all  the  large  trusts  complained  of  by 
the  people,  which  the  President  is  trying  to 
destroy  or  control,  are  in  the  nature  of  com- 
binations or  consolidations  of  manufactur- 
ing corporations,  or  at  least  corporations 
which  deal  in  commodities,  manufacturing 
or  trading  companies.  Does  the  mere  fact 
that  the  corporation  making  them  expects 
that  ultimately  the  goods  may  be  shipped 
into  other  States  of  the  Union — or  even  in- 
tends so  to  ship  them  itself — does  this  alter 
the  state  of  things  ?  Are  they  for  that  reason 
interstate  commerce  .?  Our  Supreme  Court, 
in  the  famous  Knight  decision,  held  not. 
Are  we  then  left  without  a  remedy .?  That 
is  to  say,  under  the  bad  laws  of  some  States, 
obnoxious  trusts,  corporations  with  danger- 
ous powers  were  being  created.  When 
238 


INTERSTAl  E  COAIAIERCE 

created  they  did  business  throughout  the 
Union.  Had  the  Federal  Government  no 
remedy  ?  Was  there  no  remedy  for  this 
state  of  things,  no  possibihty  of  a  law  by 
which  the  people  could  be  protected  against 
the  injuries  they  suffered  ? 

Three  remedies  were  laid  down  in  the 
report  of  the  Industrial  Commission,  and 
the  one  they  recommended  was  the  one 
which,  at  least  for  some  years,  the  President 
seemed  to  prefer.  These  three  remedies 
are,  first,  what  is  perhaps  the  ideal  remedy, 
to  have  the  States  and  the  Nation  work  to- 
gether; that  is  to  say,  all  the  States  volun- 
tarily of  their  own  good  sense  adopt  good 
corporation  laws,  if  possible  the  same  cor- 
poration law,  so  that  the  evils  complained 
of  will  not  exist.  And  by  corporation  laws, 
of  course,  I  also  mean  laws  aimed  at  what 
are  called  trusts,  abuses  in  restraint  of 
trade,  monopoly,  etc.  This,  as  I  say, 
would  be  the  ideal  remedy.  But  from  the 
nature  of  the  States,  if  not  from  human  nat- 
ure, it  seems  too  much  to  hope  for  in  this 
world.  Even  if  forty-five  of  the  States  saw 
the  light  and  enacted  an  identical  good  law, 
it  would  be  all  the  more  profitable  for  the 

239 


THE  AMERICAN  CONSTITUTION 

forty-sixth  State  to  charter  these  New  Jer- 
sey corporations  with  full  powers  and  let 
them  fly  away  over  the  land,  provided  only 
that  they  paid  an  annual  tax  to  the  State  of 
New  Jersey.  There  is,  however,  one  rem- 
edy, but  it  does  not  seem  to  have  been  men- 
tioned much  in  the  discussion,  certainly  not 
by  the  President.  A  State  really  has  full 
power  to  protect  itself  if  it  wishes  to,  except 
indeed,  under  the  modern  and  radical  view 
of  the  words  "interstate  commerce."  That 
is  to  say,  it  is  admitted  that  no  State  is 
obliged  to  permit  the  corporation  of  any 
other  State  to  come  within  its  borders  and 
do  business.  If  the  State  of  Massachusetts 
complains  of  the  Steel  Trust,  for  instance, 
it  has  the  entire  constitutional  right  to  ex- 
clude that  corporation  from  the  State  mar- 
kets and  stop  all  its  business  and  affairs  at 
the  State  line.  And,  moreover,  it  can  pre- 
vent the  same  results  indirectly  attained  by 
forbidding  one  corporation  to  own  stock  in 
another — this,  indeed,  was  the  good  old 
common  law.  These,  you  see,  would  be 
perfectly  effective  remedies.  There  is  noth- 
ing to  prevent  our  telling  the  Standard  Oil 
Company  it  cannot  do  business  in  the  State 
240 


INTERSTATE  COMMERCE 

of  Massachusetts  from  to-morrow;  there 
is  nothing  to  prevent  our  forbidding  the 
United  States  Steel  Trust  of  New  Jersey  to 
own  stock  in  the  Washburn  and  Moen  Com- 
pany of  Worcester.  Indeed,  something  hke 
this  has  been  done  by  the  State  of  Texas. 
The  remedy  is  drastic  and  complete.  The 
only  trouble  is  that  it  may  be  too  complete. 
The  reason  it  has  not  been  adopted,  in  my 
opinion,  is  very  simple — the  intelligent  radi- 
cals are  not  sincere,  and  the  sincere  radicals 
are  not  intelligent.  Whatever  be  the  reason, 
however,  the  fact  is  that  this  remedy  has 
never  been  tried  and  still  remains  among 
the  powers  of  the  people  of  the  States. 

The  President's  remedy  is  Federal  arroga- 
tion  of  the  power  by  a  strained  construction 
of  the  Constitution.  Now,  it  is  always  as- 
sumed by  the  radicals  that  this  broad  inter- 
pretation of  the  words  "interstate commerce" 
will  be  a  good  thing  for  the  people  and  will 
strengthen  their  powers  as  against  the  great 
trusts  and  corporations.  I  believe  the  exact 
opposite  to  be  the  case.  If  the  words  "in- 
terstate commerce"  be  stretched  to  include 
nearly  all  business  corporations,  the  States 
and  the  people  of  the  States  will  at  once 
241 


THE  AMERICAN  CONSTITUTION 

become  powerless.  They  will  lose  all  their 
rights  under  their  own  laws.  It  has  been 
decided  by  the  Supreme  Court — in  the 
Pensacola  Telegraph  case,  against  the  dis- 
sent of  its  greater  judges — that  the  one  ex- 
ception to  the  power  of  a  State  to  forbid  a 
corporation  to  do  business  within  its  limits 
is  the  case  of  an  interstate  commerce  cor- 
poration. I  hold  that,  like  the  rights  of 
the  Fourth  and  Fifth  Amendments,  the  right 
to  conduct  interstate  commerce  is  a  per- 
sonal right,  not  guaranteed  to  corporations 
of  other  States.  This  case  was  originally 
decided  only  of  a  telegraph  company  ex- 
tending across  State  lines,  but  it  has  since 
been  extended  to  railroads,  and  under  the 
construction  contended  for,  apparently  by 
the  Administration,  it  would  cover  all  cor- 
porations doing  business  directly  or  in- 
directly in  more  than  one  State.  We  had 
an  object  lesson  in  this  this  year.  The  first 
effect  of  the  much-lauded  railway  rate  regu- 
lation bill  has  been  to  deprive  the  people  of 
the  States  of  all  their  common-law  rights  as 
to  the  charges  of  railroads  and  most  of  the 
State's  power  to  control  them  by  statute. 
The  Southern,  the  Western,  States  are  already 
242 


INTERSTATE  COMMERCE 

in  arms  against  it,  invoking  against  the  Fed- 
eral power  the  Eleventh  Amendment.  It 
may  be  that  we  shall  find  Congress  makes 
laws  much  better  than  the  States  did;  we 
can  now  only  hope  so.  It  may  be  we  shall 
be  better  protected  and  have  better  legisla- 
tion in  Washington  than  we  could  make  in 
Boston;  but  the  fact  will  always  remain  and 
must  not  be  lost  sight  of  tliat  we  are  rele- 
gated to  only  one  tribunal  instead  of  two; 
we  are  now  dependent  only  on  legislation 
from  Washington,  controlled  by  a  Federal 
Commission,  and  can  no  longer  protect  our- 
selves by  legislation  in  the  States.  This, 
you  know,  is  the  great  fight  now  going  on 
between  the  States  of  the  South  and  the 
West  against  the  Federal  Government. 
Federal  courts  have  issued  injunctions 
against  enforcing  the  State  railroad  laws, 
and  the  States,  both  by  the  Executive  and 
by  the  Courts,  have  been  angrily  resistant. 
Railroads  are  instrumentalities  of  interstate 
commerce  unquestionably.  I  have  little 
doubt,  therefore,  that  the  Federal  Govern- 
ment will  prevail  as  to  them;  but  note  well 
the  vast  change  if  the  same  principle  ap- 
plies to  all  other  kinds  of  business  as  well. 

243 


THE  AMERICAN  CONSTITUTION 

We  will,  however,  dismiss  the  possibility 
of  uniform  action  by  the  Nation  and  by  the 
States  in  this  great  question,  as  the  President 
has  dismissed  it,  and  come  to  the  second 
proposition,  which  is  the  one  recommended 
by  the  Industrial  Commission,  and,  at  first, 
at  least,  adopted  by  the  President.  It  has 
also  in  part  passed  into  law.  The  Federal 
Bureau  of  Corporations  was  established  as 
a  consequence  of  it.  This  principle  is  sub- 
stantially this.  Under  the  Federal  Con- 
stitution Congress  has  power  to  regulate 
interstate  commerce  and  also  the  persons 
who  conduct  it.  We  do  not  propose  the 
revolutionary  change  that  would  result  from 
giving  all  corporations  Federal  charters,  but 
we  do  propose  that  any  and  all  corporations 
which  do  interstate  commerce  shall,  either 
under  the  taxing  power  or  under  the  direct 
power  given  to  Congress  over  such  com- 
merce, be  compelled  to  conform  to  a  certain 
standard  both  of  conduct  and  of  organi- 
zation. They  shall  pay  a  certain  annual 
license  tax,  and  as  part  of  the  machinery  of 
collecting  that  tax,  make  the  fullest  reports 
giving  publicity  of  all  kinds  as  to  all  their 
transactions,  showing  the  fares  or  rates, 
244 


INTERSTATE  COMMERCE 

how  much  they  are  earning,  whether  their 
charges  compare  favorably  with  those  of 
other  corporations  or  even  with  the  standard 
that  the  Government  may  set,  and,  finally, 
giving  the  Government  full  power  over  the 
organization  of  such  corporations.  That  is 
to  say,  to  see  that  there  is  no  watered  stock, 
no  fictitious  debt,  and  none  of  the  other  de- 
vices by  which  extortionate  profits  are  made 
or  monopolies  established.  And  this  by 
automatic  process,  as  it  were,  prosecuting 
or  depriving  of  their  licenses  all  corporations 
whose  reports  do  not  show  conformity  with 
the  law.  In  my  opinion  there  is  no  con- 
stitutional difficulty  as  to  this  course,  nor 
have  I  seen  that  the  President  thinks  there 
is.  I  do  not  know  why  there  seems  to  be 
a  tendency  just  now  to  abandon  it  for  the 
more  radical,  if  not  revolutionary,  other 
method  of  control,  that  of  requiring  all  cor- 
porations doing  interstate  commerce  busi- 
ness to  be  Federal  corporations  acting  under 
Federal  charters,  Federal  laws,  Federal 
courts.  Federal  control,  and  paying  taxes  to 
the  Nation  and  not  to  the  State.  This  sub- 
ject I  have  repeatedly  adverted  to  in  the  last 
two  lectures.     I  have  tried  very  hard  to  look 

245 


THE  AMERICAN  CONSTITUTION 

the  matter  fairly  on  both  sides,  but  remain, 
after  five  years'  investigation  and  study, 
just  where  the  Industrial  Commission  was 
in  its  final  conclusion  in  the  year  1900 — 
that  this  method  would  be  drastic,  revolu- 
tionary and  subversive  of  the  whole  prin- 
ciple of  the  American  Government,  which 
places  the  control  of  political  affairs  only  in 
the  hands  of  Congress  and  leaves  social  and 
domestic  affairs  to  the  States  to  regulate. 
Moreover,  there  is  a  terrible  fault  in  this 
method,  as  proposed,  and  so  far  as  it  now  ex- 
ists. The  law  recommended  by  the  Indus- 
trial Commission  was  fair  and  equal  to  all 
corporations.  It  required  all  and  every  cor- 
poration doing  interstate  commerce  business 
to  report  to  the  Bureau  of  Corporations, 
placed  it  under  its  control  in  so  far  as  it  did 
such  business,  and  gave  no  power  to  apply 
to  one  corporation  a  different  rule  than  was 
applied  to  the  others.  By  what  it  seems  to 
me  was  an  unfortunate  mistake  under  the 
act  as  drawn,  the  Commissioner  of  Cor- 
porations, an  Executive  officer  resembling 
indeed  one  of  the  early  commissioners  of  the 
Norman  kings,  created  for  the  same  sort  of 
purpose,  was  clothed  with  arbitrary  visit- 
246 


INTERSTATE  COMMERCE 

atorial,  inquisitorial,  dictatory  powers.  That 
is  to  say,  he,  or  the  President  advising  him, 
is  authorized  to  single  out  one  corporation 
to  attack;  he  is  not  required  to  extend  the 
same  rule  and  the  same  methods  of  attack 
simultaneously  to  all  corporations  at  the 
same  time;  he  may  launch  condemnation 
against  one  man  or  one  corporation  as 
arbitrarily  as  an  excommunication  by  the 
Pope.  Visitatorial  powers  are  always  ob- 
jectionable, but  are  certainly  necessary  in 
the  case  of  corporations,  which  are  merely 
creatures  of  the  State  and  have  no  natural 
rights;  and  inquisitorial  powers  of  a  most 
drastic  and  arbitrary  kind  are  given  by 
this  Act  of  Congress  to  the  Executive  and 
its  officers.  That  is  to  say,  the  Commis- 
sioner of  Corporations  or  his  agents  may  at 
any  time  descend  upon  any  corporation,  ex- 
amine into  all  its  affairs,  insist  on  seeing  all 
its  accounts,  its  books,  and  even  its  private 
correspondence.  This,  you  know,  could 
not  be  done  with  an  individual  citizen  under 
Anglo-American  constitutional  principles. 
You  cannot  have  general  search  warrants 
nor  compel  criminating  evidence  from  any  ' 
man.  If  you  do,  then  you  must  not  prose- 
247 


THE  AMERICAN  CONSTITUTION 

cute  him  for  any  oflfence  that  you  discover 
by  such  methods.  But  our  Supreme  Court 
has  just  held  that  this  great  hberty  right  was 
a  personal  right;  that  it  applies  to  men  and 
not  to  artificial  bodies  like  corporations; 
and  that  these  latter,  being  creatures  of  the 
State,  can  be  treated  by  it  in  any  manner 
that  it  choose;  and  that  the  Federal  Govern- 
ment has  the  same  powers  over  State  cor- 
porations, in  so  far  as  they  do  interstate 
commerce,  that  a  State  itself  has  over  the 
corporations  it  creates.  This  decision  ac- 
cordingly, ratified  and  armed  this  law — in 
so  far  as  the  examinations  and  reports  of 
interstate  commerce  corporations  were  re- 
quired. The  law  was  held  constitutional 
as  to  them.  We  have  succeeded,  therefore, 
in  getting  all  the  matters  of  corporations 
engaged  in  interstate  commerce  under  the 
control  and  the  investigation  of  the  Federal 
Government.  This  was  a  great  achieve- 
ment, and  it  is  due  entirely  to  the  energy  of 
the  present  President.  There  can  be  little 
doubt  but  that  it  is  perfectly  constitutional, 
provided  only  the  definition  of  the  words 
"  interstate  commerce  "  be  not  strained.  But 
when  the  law  goes  on,  as  it  does,  to  give  the 
248 


INTERSTATE  COMMERCE 

Commissioner  of  Corporations,  or  any  ad- 
ministrative officer,  acting  with  or  without 
the  advice  of  the  Executive,  the  power  to 
single  out  what  corporation  he  shall  attack 
and  leave  others  entirely  unmolested — when 
the  law  is  not  a  general  law  applying  to 
everybody,  but  a  permission  to  the  Execu- 
tive to  harry  or  attack  or  fine  such  parties 
as  he  or  his  officers  may  select — it  becomes 
absolutely  counter  to  Anglo-Saxon  con- 
stitutional principles.  The  arbitrary  power 
to  descend  upon  such  corporation  as  he 
selects,  *'to  go  upon  it  or  send  upon  it"  at 
will  or  on  displeasure — is  exactly  the  kind 
of  authority,  the  kind  of  law,  that  the  Nor- 
man kings  or  Henry  VIII  or  Charles  I  used 
to  enact  in  council  and  without  the  consent 
of  Parliament.  The  mere  selection  of  a 
"trust"  for  such  investigation  is  business 
ruin  to  it,  though  innocent.  A  bank  ex- 
aminer visits  all  banks;  otherwise  his  pres- 
ence in  a  bank  would  cause  a  run  upon  it. 
The  right  of  the  Englishman  to  equal  law 
is  guaranteed  in  our  Constitution;  and  even 
the  unfortunate  corporation  is  admitted  to 
have  property  rights,  and  probably  the  same 
right  to  equal  treatment.  The  present  law, 
249 


THE  AMERICAN  CONSTITUTION 

therefore,  is  wrong,  and  should  be  amended 
at  once  or  the  complaints  will  grow  louder 
and  louder.  The  equal,  self-executing 
method  recommended  by  the  Industrial 
Commission  could,  they  say  (Vol.  XIX,  p. 
651)  "be  employed  with  little  or  no  danger 
to  industrial  prosperity" — such  has  not 
proved  the  case  with  the  present  one.  More- 
over, it  may  be  all  very  well  when  admin- 
istered by  an  honest  Executive  seeking 
fairly  the  good  of  all  the  people;  but  we 
cannot  be  sure  that  we  shall  always  have 
such  a  President.  If  the  law  continues  to 
exist  as  it  reads  now,  it  will  place  in  the 
hands  of  any  unscrupulous  Executive  the 
most  tremendous  engine  that  has  ever  been 
created  for  subverting  the  principle  of  free 
government;  for  obtaining  extraordinary 
privileges  or  grants  of  money;  for  control- 
ling the  business  interests  of  the  country; 
for  party  corruption,  and  for  perpetuating 
himself  or  his  party  in  office.  We  must 
embark  upon  no  course  of  legislation  which 
places  in  the  hands  of  the  Executive  or  any 
officer  the  arbitrary  power  to  descend  upon 
the  trusts — to  **send  upon  or  go  upon 
them,"  as  Magna  Charta  has  it — to  select 
250 


INTERSTATE  COMMERCE 

which  one  he  shall  attack,  which  one  he 
shall  fine,  which  one  he  shall  pardon,  and 
which  one  he  shall  leave  immune. 

The  tendency  of  the  time  is  the  blind 
rush  to  cure  an  immediate  evil,  oblivious 
of  all  else,  reckless  of  method  or  conse- 
quences. Because  certain  sections  of  the 
country  were  aggrieved  by  excessive  freight 
charges  we  are  asked  to  abandon  our  frame 
of  government  and  put  our  lives  and  our 
affairs  in  the  hands  of  a  centralized  power 
at  Washington.  Have  you  any  of  you 
thought  of  the  other  side,  even  in  this  sim- 
plest and  most  proper  application  of  the 
Roosevelt  theory  ?  We  have,  in  this  State, 
complained  a  great  deal  of  the  merger  of 
railways,  of  the  operation  of  the  Boston  & 
Albany,  for  instance,  by  the  New  York 
Central.  Have  you  yet  considered  the 
practical  working  of  the  President's  plan, 
even  as  to  railroads — which  we  all  admit 
to  be  a  proper  subject  of  interstate  com- 
merce ?  That  it  will  ultimately  place  the 
control  of  our  railways,  yes,  even  of  our 
trolley  lines,  in  the  hands  of  a  power  far 
more  remote  and  far  more  indifferent  to 
the  welfare  of  the  people  of  Massachusetts 
251 


THE  AMERICAN   CONSTITUTION 

than  even  the  management  of  the  New 
York  Central  can  be  ?  The  directors  of 
the  New  York  Central  must,  at  least,  care 
somewhat  for  the  prosperity  of  their  busi- 
ness in  Massachusetts;  but  a  Government 
controlled  by  the  Congressmen  of  the  Mis- 
sissippi Valley  or  the  far  West  will  be  quite 
as  indifferent  to  our  needs  and  desires  as 
they  have  been  for  the  past  ten  years  to 
our  clamor  for  free  coal,  free  hides,  and 
other  free  raw  materials.  We  now  com- 
plain of  the  delays  on  the  Boston  &  Albany 
Railroad;  but  we  can  at  least  go  before  our 
own  State  Railroad  Commission,  and  they 
have  power  at  once  to  give  redress.  But  sup- 
pose it  were  a  Federal  corporation;  it  could 
not  be  sued  in  the  courts  of  Massachusetts,  it 
would  not  be  subject  to  the  laws  of  Massa- 
chusetts, it  could  not  be  controlled  by  our 
Commission,  and  to  any  complaint  of  a 
passenger  from  Newton  Centre  that  his 
train  was  late,  it  would  serenely  refer  him 
to  the  Interstate  Commerce  Commission  at 
Washington — at  such  time  as  they  chose  or 
might  find  leisure  to  listen  to  his  story.  I 
admit  that  the  railroads  are  one  proper  sub- 
ject of  regulation  under  the  Interstate  Com- 
252 


INTERSTATE  COMMERCE 

merce  Clause  of  the  Constitution;  but  I 
earnestly  assert  that  if  all  control  or  power 
over  them  is  taken  from  the  people  of  the 
States  where  they  run,  and  handed  over  to 
an  overworked  board  of  political  appointees 
at  Washington — the  last  condition  of  the 
people  of  these  States  will  be  worse  than  the 
first. 

We  have  now  concluded  our  brief  survey. 
I  shall  be  well  content  if  I  have  called  your 
attention  to  a  few  cardinal  propositions.  I 
am  aware  that  in  this  course  I  have  taken 
the  unpopular  side.  A  Chicago  newspaper, 
referring  to  these  lectures,  uses  the  following 
words:  "Whenever  a  Federal  railway  or 
food  inspection  law  is  needed,  whenever  any 
evil  is  to  be  cured  which  the  States  will  not 
correct,  the  Professor  would  urge  us  to  let 
the  evil  be,  lest  we  find  ourselves  hopelessly 
under  the  Government  at  Washington.  Lib- 
erties are  of  little  worth  if  they  cannot  be 
exercised."  Now  this  is  a  fair  sample  of 
the  kind  of  criticism  I  have  met  with,  and 
betrays  the  need  of  education  of  this  Chicago 
editor  in  just  such  subjects  as  we  have  tried 
to  explain.  Note  in  the  first  place  that  the 
very  instances  he  chooses  are  precisely  the 
253 


THE  AMERICAN   CONSTITUTION 

instances  which  I  have  mentioned  as  proper 
for  Federal  regulation.  I  do  not  question 
that  both  railways  and  the  commerce  of 
adulterated  foods  or  drugs  across  State  lines 
may  properly,  and  wisely,  and  constitution- 
ally be  controlled  and  regulated  by  the 
Government;  the  Industrial  Commission 
drew  up  a  bill  for  Congress  which  should  in 
the  same  manner  control  the  traffic  across 
State  lines  in  goods  the  product  of  convict 
labor.  This  is  apt  to  be  the  case  with  all 
the  advocates  of  Federal  aggrandizement. 
The  examples  they  choose  are  precisely  the 
ones  upon  which  we  are  all  agreed.  If  I 
have  seemed  unduly  critical  of  our  present 
President,  it  is  merely  that  he  does  so  many 
more  things  than  other  Presidents  have 
done  that  there  is  greater  chance  that  some 
provoke  our  discussion.  With  many  of  his 
objects  I  am  in  sympathy.  But  I  am  look- 
ing to  the  future.  In  my  opinion,  every  one 
of  these  objects  can  be  gained  in  constitu- 
tional ways,  in  methods  which  will  not  alter 
our  frame  of  Government  and  hand  over  our 
most  precious  heritage  shattered  and  im- 
paired, to  be  perverted  to  the  selfish  uses 
of  some  less  patriotic  President  in  some 
254 


INTERSTATE  COMMERCE 

future  time.  The  American  people  are 
silent  to-day.  That  is  simply  because  they 
trust  the  good  intentions  of  tlie  President. 
If  it  were  Andrew  Johnson  that  were  doing 
these  things,  you  would  hear  a  very  differ- 
ent story.  But  if  the  States,  to  use  the 
Chicago  newspaper's  phrase,  will  not  cor- 
rect an  evil,  it  is,  in  the  last  analysis,  be- 
cause they  do  not  consider  it  such.  When 
they  do  so  consider  it,  they  can  cure  it  them- 
selves, either  by  ordinary  legislation  or,  if 
necessary,  by  amendment  to  the  Constitu- 
tion. As  Mr.  Roosevelt  said  of  Oliver 
Cromwell:  "He  was  for  good  government, 
but  it  was  not  for  him  alone  to  insist  on 
what  good  government  was." 

I  shall  be  satisfied  if  I  have  left  some  half 
a  dozen  concepts  clear  in  your  mind.  First, 
local  self-government  and  the  common  law, 
both  forever  essential  to  a  free  English 
people.  Second,  the  separation  of  the  pow- 
ers, that  the  Executive  shall  not  control 
legislation,  or  government  officers  assume 
judicial  powers.  Third,  the  great  prin- 
ciple that  has  kept  our  Nation  alive  so  far, 
that  the  Centralized  Government  of  our 
mighty  empire  is  confined  to  political  pow- 
255 


THE  AMERICAN  CONSTITUTION 

ers  alone,  National  defence,  our  relation  to 
other  nations,  and,  possibly,  national  im- 
provements— such  as  the  deepening  of  the 
Mississippi  River;  while  the  domestic  af- 
fairs of  the  people — men's  lives  and  liberties, 
their  acquirement  of  property,  and  their 
relation  to  their  neighbors — is  left  to  each 
man's  own  State  to  control,  each  State 
wisely  differing  in  its  laws  where  differences 
of  climate,  race  conditions,  or  industry  so 
demand;  and  that  any  attempt  forcibly  to 
make  them  all  conform  to  a  procrustean 
rule  is  the  height  of  unwisdom  and  folly. 
And,  finally,  that  our  Constitution  demands 
everywhere  a  republican  form  of  govern- 
ment— everywhere  that  our  flag  shall  go. 
As  the  Thirteenth  Amendment  puts  it, 
slavery  shall  not  exist — not  only  in  any 
State — but  in  any  place  subject  to  the  juris- 
diction of  the  United  States. 

And  the  great  document  itself  is  not  a 
dry  code  of  rules,  but  the  sum  and  substance 
of  our  liberties  gained  in  a  thousand  years 
of  struggle  for  freedom;  and,  as  was  said 
by  one  of  our  great  Chief- Justices,  the  Con- 
stitution *' speaks  not  only  in  the  same  words 
but  with  the  same  meaning  and  intent  with 
256 


INTERSTATE  COMMERCE 

which  it  spoke  when  it  came  from  the  hands 
of  its  framers  and  was  voted  on  and  adopted 
by  the  people  of  the  United  States";  and 
by  the  other,  Marshall,  "No  political 
dreamer  was  ever  wild  enough  to  think  of 
breaking  down  the  lines  which  separate  the 
States,  and  of  compounding  the  American 
people  into  one  common  mass.  Of  con- 
sequence when  they  act,  they  act  in  their 
States.  But  the  measures  they  adopt  do 
not,  on  that  account,  cease  to  be  the  meas- 
ures of  the  people  themselves."  And  again, 
in  another  case:  *'The  genius  and  character 
of  the  whole  Government  seems  to  be  that 
its  action  is  to  be  applied  to  all  the  external 
concerns  which  affect  the  States  generally, 
but  not  to  those  which  are  completely 
within  a  particular  State."  And,  finally,  by 
George  Washington:  "If  in  the  opinion  of 
the  people  the  distribution  or  modification 
of  the  constitutional  powers  be  in  any  par- 
ticular wrong,  let  it  be  corrected  by  an 
amendment  in  the  way  which  the  Constitu- 
tion designates.  But  let  there  be  no  change 
by  usurpation;  for  though  this  in  one  in- 
stance may  be  the  instrument  for  good,  it 
is   the    customary   weapon   by   which    free 

257 


THE  AMERICAN  CONSTITUTION 

Governments  are  destroyed.  The  precedent 
must  always  greatly  overbalance  in  per- 
manent evil  any  partial  or  transient  benefit 
which  the  use  can  at  any  time  yield."  And 
by  Abraham  Lincoln:  "To  maintain  in- 
violate the  rights  of  the  States  to  order  and 
control  under  the  Constitution  their  own 
affairs  by  their  own  judgment  exclusively 
is  essential  for  the  preservation  of  that 
balance  of  power  on  which  our  institutions 
rest." 

It  is  a  sad  contrast  between  the  way  that 
so  many  of  our  people,  or  our  newspapers, 
feel  to-day,  one  hundred  and  twenty  years 
after  the  adoption  of  our  Magna  Charta, 
and  the  way  the  people  felt  in  England, 
exactly  the  same  time,  one  hundred  and 
twenty  years,  after  the  adoption  of  their 
own.  For,  in  1253,  ^^^  hundred  and 
thirty-eight  years  after  John's  Charter,  in 
the  thirty-seventh  year  of  the  reign  of  Henry 
III,  a  popular  King,  a  great  jurist,  and  a 
radical  maker  of  new  laws:  *'0n  the  third 
day  of  May  [I  read  from  the  Statutes  of  the 
Realm  in  Latin]  in  the  great  hall  of  the 
King  at  Westminster^  tn  the  presence  of  the 
King  and  his  brother  and  the  Marshall  of 
258 


INTERSTATE  COMMERCE 

England^  and  the  other  estates  of  the  Realrriy 
We,  Boniface,  Archbishop  of  Canterbury, 
and  the  Bishops  of  London,  and  Ely,  and 
Rochester,  and  Worcester,  and  Lincoln,  and 
Norwich,  and  Carlyle,  and  St.  David^s,  all 
appareled  in  pontificals,  with  tapers  burn- 
ing, against  the  breakers  of  the  liberties  or 
customs  of  the  Realm  of  England,  and 
namely  those  which  are  contained  in  the 
Charter  of  the  Common  Liberties  of  Eng- 
land, excommunicate,  accurse,  and  from  the 
benefits  of  our  Holy  Mother  the  Church, 
sequester  all  those  who,  by  any  craft  or 
wiliness,  do  violate,  break,  diminish  or 
change  the  statutes  and  free  customs  of  the 
Realm  of  England,  to  the  perpetual  memory 
of  which  excommunication  we,  the  afore- 
said prelates,  have  put  our  seals.^*  So  in 
1253  they  felt — and  so  in  1907  should  we 
feel  now. 


259 


This  book  is  DUE  on  the  last  date  stamped  below 


S 


OCT  86  ''^^ 

JUL  2  1  1947 
IIOV  2  S  19501 

FW5.  If* 
FEB  5     t®n« 

JUN2  7  1958 

JUL  21 1958 

APR  Z  1  I960 


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